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. Processing the process to the Procés (Len- gua de Trapo, 2019), written by Guillem Martínez with a markedly ironic style. In We will do it again. When injustice is the law, civil disobedience is a right (Ara Llibres, 2019), Jordi Cuix- art summarizes his two interventions before the Supreme Court. In Jo Acuso. The defense in po- litical judgments (in Catalan by Pagés Editors, 2019, with a Spanish edition by Editorial Milenio and Txalaparta, 2020), the lawyer Benet Salellas reviews the strategy followed throughout the trial by the Cuixart team. The same is done by Jordi Pina, defender of Sànchez, Turull and Rull, in The Judgment of My Life (Column, 2019) and Xavier Melero, the lawyer for Forn and Borràs, in The Order. A lawyer in the Procés trial (Ariel, 2019). 7 Defendant Crimes and sentences Crimes and sentences Crimes and sentences sought after by the Public sought after by the State’s sought after by the Popular Prosecutor’s Prosecutors Prosecutors, Vox. Jordi Cuixart Rebellion: 17 years of im- Sedition: 8 years of impri- Two crimes of rebellion or two prisonment. sonment. of sedition and belonging to a criminal organization: 52 years of imprisonment. Jordi Sànchez Rebellion: 17 years of im- Sedition: 8 years of impri- Two crimes of rebellion or two prisonment. sonment. of sedition and belonging to a criminal organization: 52 years of imprisonment. Oriol Junque- Rebellion and misappro- Sedition and missappror- Rebellion, criminal organiza- ras priation: 25 years of impri- priation: 12 years of impri- tion and misappropriation: 74 sonment. sonment. years of imprisonment. Meritxell Bo- Disobedience and missa- Sedition and misappro- Criminal organization, disobe- rràs ppropiation: 7 years of priation: 7 years of impri- dience and misappropriation: imprisonment and a fine. sonment and a fine. 24 years of imprisonment and a fine. Dolors Bassa Rebellion and misappro- Sedition and misappro- Rebellion, criminal organiza- priation: 16 years of impri- priation: 11 years and 6 tion y misappropriation: 74 sonment. months of imprisonment. years of imprisonment. Carme Forca- Rebellion: 17 years of im- Sedition and misappro- Two crimes of rebellion or dell prisonment. priation: 10 years of impri- two of sedition and criminal sonment. organization: 52 years of im- prisonment. Joaquim Forn Rebellion and misappro- Sedition and misappro- Rebellion, criminal organiza- priation: 16 years of impri- priation: 11 years and 6 tion and misappropriation: 74 sonment. months of imprisonment. years of imprisonment. Carles Mundó Disobedience and misa- Sedition and misappro- Criminal organization, disobe- ppropriation: 7 years of priation: 7 years of impri- dience and misappropriation: imprisonment and a fine. sonment and a fine. 24 years of imprisonment and a fine. Raül Romeva Rebellion and misappro- Sedition and misappro- Rebellion, criminal organiza- priation: 16 years of impri- priation: 11 years and 6 tion and misappropriation: 74 sonment. months of imprisonment. years of imprisonment. Josep Rull Rebellion and misappro- Sedition and misappro- Rebellion, criminal organiza- priation: 16 years of impri- priation: 11 years and 6 tion and misappropriation: 74 sonment. months of imprisonment. years of imprisonment. Jordi Turull Rebellion and misappro- Sedition and misappro- Rebellion, criminal organiza- priation: 16 years of impri- priation: 11 years and 6 tion and misappropriation: 74 sonment. months of imprisonment. years of imprisonment. Santiago Vila Disobedience and misa- Misappropriation: 7 years Criminal organization, disobe- ppropriation: 7 years of of imprisonment and a dience and misappropriation: imprisonment and a fine. fine. 24 years of imprisonment and a fine.

8 1. PREAMBLE right to act as the third-party prosecution in a cause of such political im- plications; the infringement on the right to act as political representatives carried out against the defendants; the possible infringement of the rights to free speech and freedom of assembly; or even the constrictions of the right to submit evidence, among other issues6. Entire books could be written on the subject of all the controversies, as well as the response given by the Chamber, to the possible infringement of rights brought up by the defen- dants. Nevertheless, purpose of this report is not to enter into the depths of these topics, which have already been the subject of analysis of many jurists and journalists during the last year; its objective is exclusively to study whether the sentence passed down in this case will have any significant legal consequences on the citizenry’s right to protest. In other words, we aim to study whether the sentence has generated any type of precedent that in the future could limit or restrict the rights of assembly, protest or speech recognized by the Constitution, even beyond the specific context of the mobilizations in favor of Catalonia’s self-determination.

The first section of the report is a close examination of the ruling in its en- tirety. This entails a detailed summary of the facts of the case, as well as the legal arguments used by the Supreme Court to consider them acts of sedition; these deliberations will appear alongside the scarce prior jurispru- dence around this type of criminal act.

The second section of the report, following the arguments brought forth by the Supreme Court, explores how the ruling will affect the right of assembly in the future, as well as whether this determination complies with the mini- mum standards established by The European Court of Human Rights. We also pay special attention to the notion of non-violent civil disobedience, and to the way the ruling specifically addresses this form of strategic politi- cal mobilization.

The third section, a brief exercise in Comparative Law, contrasts the crimi- nal act of sedition in Spanish law with this type of crime in other countries in

6 Regarding the possible violations of rights that could have been incurred, we refer to the report Valoración Fáctico-Jurídica por parte de Observadores Internacionales y Nacionales de la Sentencia Condenatoria de Autoridades y Líderes Sociales Catalanes, published by the International Trial Watch platform (Barcelona, ​​2019). 9 Spain’s geographic and socio-cultural proximity, as a way of ascertaining whether the Spanish crime finds reasonable equivalents within the broader European legal system.

Finally, the report concludes with a brief series of legal and legislative proposals that could be adopted both by the Chambers of Congress and the Courts in order to avoid interpreting the criminal act of the sedition in a blatantly harmful way to the fundamental rights of free speech, assembly and protest. THE RULING OF PROCÉS AND RIGHT TO PROTEST

10 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE RULING OF THE PROCÉS

On October 14 2019, more than four months after the oral arguments had concluded, the Supreme Court made public the much anticipated 493 pages of the Ruling 459/2019, otherwise known as the Ruling of the Procés7.

Ultimately, the Supreme Court considered that the events proven throughout the trial constituted a criminal act of sedition, while the accusation of rebel- lion brought forth by the Prosecution was ruled out.

The penalties imposed (nine to thirteen years for most defendants) are un- deniably harsh. One must take into consideration that the prison terms ex- ceed those sentencing recommendation by the State Attorney’s Office. For instance, Jordi Cuixart and Jordi Sànchez were sentenced to nine years in prison each despite the fact that the Prosecution only asked for a sentence of eight; had Vox’s third-party prosecution not sought penalties of fifteen years in prison for this crime, such a ruling would not have been possible.

Likewise, the majority of defendants who held positions of political respon- sibility in 2016 and 2017 were convicted of committing crimes of em- bezzlement alongside the crime of sedition, for which many of them were

7 “Procés”, process in Catalan, is the generally accepted term to refer to the movements leading up to the Self-Determination referendum which took place in Catalonia on October 1st, 2017. 11 awarded the highest penalties possible. On the other hand, the three con- sellers who were not convicted of the crime of sedition were convicted of a crime of civil disobedience, and were thus required to pay a fine.

Defendant Convicted Crimes Imposed Sentence

Oriol Junqueras Sedition and misappropriation. 13 years of imprisonment.

Raül Romeva Sedition and misappropriation. 13 years of imprisonment.

Jordi Turull Sedition and misappropriation. 13 years of imprisonment.

Dolors Bassa Sedition and misappropriation. 13 years of imprisonment.

Carme Forcadell Sedition. 11 years and 6 months of imprisonment. THE RULING OF PROCÉS AND RIGHT TO PROTEST Joaquim Forn Sedition. 10 years and 6 months of imprisonment.

Josep Rull Sedition. 10 years and 6 months of imprisonment..

Jordi Sànchez Sedition. 9 years of imprisonment.

Jordi Cuixart Sedition. 9 years of imprisonment.

Meritxell Borràs Disobedience. Fine.

Carles Mundó Disobedience. Fine.

Santiago Vila Disobedience. Fine.

Given that the goal of this report is to determine in what way this sentence can affect the right to protest of the citizenry, we want to analyze the proven facts exclusively from a social activism’s point of view. For this reason, the facts related to the crimes of misappropriation – which only affects public offices – and of disobedience will be ignored, for the disobedience to the orders of the Constitutional Court was only committed by the deputies and consellers who received direct orders from the Constitutional Court8.

8 On p. 325 of the judgment, the Supreme Court insists on the importance of personal notification as an essential element of the crime of disobedience: “it is understandable that on those occasions when the crime of disobedience is attributed to a private individual, the personal nature of the request acquires a singular relevance. This is the only way to avoid the nonsense of a citizen being criminally convicted for the simple fact of disregarding the abstract transit mandate in an imperative norm. Hence, the subsumption trial requires that the contempt of a personally notified order be verified, with the consequent legal warning that warns of the consequences of non-compliance”. In this sense, no citizen would have committed a crime of disobedience for collaborating in any way with the referendum of October 1 if he had not received 12 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS Instead, this report focuses on the facts proven by the sentence focusing on two main issues: (1) the criminal relevance of the popular mobilizations and (2) the proven facts involving Jordi Sànchez and Jordi Cuixart as representa- tives and leaders of different social institutions of Catalonia.

In particular, we concentrate on the facts attributed to Jordi Cuixart, for he is the only defendant whose conduct fell within the so called “civil non- violent disobedience” and his free and legitimate exercise of his fundamen- tal rights9. This is palpable, without any doubts, across some of his most resounding interventions during the trial:

“Facing the dilemma of the fulfillment of a suspension by the Constitutional Court and the exercise of fundamental rights, we decided to exercise the fun- damental rights. … Facing this dilemma, we did what we will always do when dealing with what we believe is an unfair decision: under the non-violence principle, act within the parameters of civil disobedience”.

“We assume an act of civil disobedience and of not to respond with violence, even though there was violence on the part of the Guardia Civil and National Police. Non-violence is nuclear in the civil disobedience”.

“We should all be proud, all Spanish Citizens: October 1st is the greatest ex- ercise of civil disobedience ever occurred in Europe. Historically, there is no similar exercise”10.

a personal request beforehand that prohibited him from doing so. Jordi Cuixart himself stated this during his statement during the oral trial: "no court ever questioned ordinary citizens not to participate in the referendum". 9 “Cuixart’s defense was the one to focus the most on fundamental rights. Thanks to Cuix- art, perhaps, the Court with have to rule on freedom of assembly and right to demon- strate”, wrote journalist Guillem Martínez on his June 18th chronicle of the trial. 10 See trial session of February 26th 2019. 13 2.1 The proven facts of the ruling

Every judicial ruling in Spain keeps the same structure: it begins with a state- ment of the proven facts that constitute the material truth about what hap- pened, followed by the development of the legal bases and explanations regarding those facts and their direct translation into concrete crimes, and it concludes with the statement of the penalties imposed as a consequence of the commitment of those crimes.

What immediately stands out from the 36 pages stating the proven facts of the sentence is that a strategic use of violence by the defendants is dis-

THE RULING OF PROCÉS AND RIGHT TO PROTEST missed. The Chamber concludes that several sporadic outbursts of violence took place during the Fall of 2017, but that these were not part of neither the defendants’ plans nor wishes, and that the use of violence was not inte- gral to the fulfillment of their goals.

The thesis of the Prosecution – that, as explained above, argued that the defendants wanted to encourage the citizenry to commit violent acts and that both polices forces and the Mossos d’Escuadra, the Catalan regional police, were to follow their orders so as to protect their criminal actions – falls apart in the sentence. Indeed, the ruling describes the acts of violence as isolated episodes, the role of the Mossos as mere passivity and focuses instead on the repeated disobedience to the authorities and on the hostile attitudes shown by thousands of people during the 20th and 21st of Septem- ber, as well as October 1st 2017.

2.1.1 The events of September 20th and 21st 2017

The first social mobilization examined in the Sentence is the one that took place on September 20th 2017. The Supreme Court blames “the defen- dants Mr. Jordi Sánchez Picanyol and Mr. Jordi Cuixart Navarro for the turn- out, for they called upon the public to appear at the offices of the Ministry of the Vice- presidency, Economy and Finance of the Autonomous Government of Catalonia, located at 19-21 Rambla de Catalunya, Barcelona.[...] The reason for this was that by order of the Investigating Judge number 13 in Barcelona, officers of the Judicial Police Group of the Civil Guard in Barce- lona had made a number of arrests and initiated enforcement of the court

14 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS decision to search the Ministry’s facilities to find elements and information that would facilitate identification of those responsible for announcing the referendum planned for 1 October and stop it from taking place”11. The proven facts of the Sentence “also broadcast the location where the legal search was taking place, urged the public to defend Catalan institutions, demanded that the Civil Guard free the individuals who had been arrested and asked Catalans to mobilize. They encouraged them by saying that they could not take on all of them, that the law enforcement agencies had made a mistake and that they had declared war on those who wanted to vote”. This resulted in ca. 40.000 protesters surrounding the building and thus “preventing the court-appointed task force from performing its normal functions”.

The Supreme Court describes the situation as “an atmosphere in which cries of protest against the presence of the task force coexisted with festive activities, some spontaneous, others instigated by the organizers” and af- firms that seven vehicles of theGuardia Civil [Spanish national guard] “suf- fered significant damage”, even if the authorship of these acts of vandalism remains unknown. It establishes that the two leaders “addressed the crowd several times to marshal their actions” and defying the State. Additionally, said leaders (Sànchez and Cuixart) called upon “all of those present to mobilize continuously” and assures that “these acts were promoted, led and desired” by them.

On the next day, 21st September 2017, “approximately 20,000 people gathered outside the High Court of Justice of Catalonia, called by Messrs Sánchez and Cuixart, in protest at the court decisions taken to prevent the holding of the referendum which had been declared illegal by the Consti- tutional Court” 12.

2.1.2 1st of October 2017

On September 27th, a judge of the High Court of Justice of Catalonia is- sued an order to all police forces in the land stating that, until October 1st,

11 Page 42 and following. 12 Page 48 and following. 15 they must prevent the “use of public premises or buildings - or those in which any type of public service is carried out - for the preparation or the celebra- tion of the referendum”. This order justified the deployment of police officers to Barcelona and other parts of Catalonia that took place a few days later.

October the 1st is the most important day of the ruling, for it is the day in which the referendum took place, and also when in several places of Cata- lonia the police was kept from closing the polling stations and seizing the polls.

The Ruling states as follows: “As regards the vote, on 1 October the defen-

THE RULING OF PROCÉS AND RIGHT TO PROTEST dants Mr Jordi Sánchez and Mr Jordi Cuixart encouraged the public through messages on Twitter and the media to occupy polling stations before the time the Autonomous Regional police force had been ordered to intervene and they were urged to prevent police officers from closing them and re- moving electoral material. They also encouraged them to go and vote en masse - despite the express and clear prohibition from the Constitutional Court and the High Court of Justice of Catalonia - and then to protect the vote count against any actions that may be performed by the State Security Forces, notes the Supreme Court” 13.

Regarding the events of October 1st 2017, the ruling asserts “that a large number of citizens, in response to persistent calls, both from the defendants mentioned above and from other people and media, stationed themselves at the schools designated as polling stations. National Police and Civil Guard officers went to several of them, intending to enforce the orders of the High Court of Justice of Catalonia, adapted, in turn, to the rulings of the Constitutional Court. The latter had declared the vote unlawful and pro- hibited any action stemming from the laws on transition and the referendum and required the co-defendants to prevent and halt those actions, including the insistent call to the public to participate in casting votes as if it were a legal referendum”.

“Clashes took place in several parts of Catalonia between members of the State Security Forces and members of the public who were taking part

13 Page 49. 16 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS in the vote, who tried to prevent at all costs the enforcement of the court ruling for which the officers were responsible. [...] Given the attitude of tactical readiness displayed by the people who positioned themselves at the entrances to the schools, the National Police and Civil Guard officers were obliged to use the force envisaged by law. The confrontation between members of the public and law enforcement officers resulted in injuries that, in many cases, required medical attention.

In the early afternoon, given that the use of force could become dispropor- tionate, the National Police and Civil Guard officers received orders and were unavoidably obliged to desist from their initial intention” 14.

To sum up, on October 1st violent acts took place that even led to cause bodily injuries both to police agents and to citizens. Nevertheless, violence was not typical or extended during this day, and the most significant and legally relevant fact was the massive disobedience to the police forces, which occasionally derived in acts of resistance against their use of force, as part of the tactic strategy of the day.

14 Page 53 and following. 17 Descriptions and Date Relevant facts qualifiers of the facts September 20th Jordi Sànchez and Jordi Cuixart called “Cries of protest against the pre- 2017 upon the population to appear at the sence of the task force” coexisted offices of the Ministry of the Vice-Pre- with “festive activities”. There was sidency, Economy and Finance of the “hostility”. Both leaders showed a Autonomous Government of Catalonia defiant attitude, challenged the Sta- during a legal search. 40,000 people te and called upon the permanent headed the call, demanding the ces- mobilization. Some vehicles ended sation of the search and the release up with “significant damages”. of the prisoners. They prevented the court-appointed task force from perfor- ming their normal functions, who were forced to leave the place secretly. September 21st 20,000 people gathered outside the The events that occurred on 20 and 2017 High Court of Justice of Catalonia in 21st September “laid the ground- protest at the court decisions taken to work so that on 1 October the

THE RULING OF PROCÉS AND RIGHT TO PROTEST prevent the holding of the referendum ballot boxes were in the appointed which had been declared illegal by the polling stations and the latter were Constitutional Court. Again, these were open and protected - “guarded” - summoned by Cuixart and Sànchez and against what it was already known did not registered acts of violence. would be the actions of the State law enforcement agencies.” October 1st 2017 Sánchez and Cuixart encouraged the Makes reference to “incidents” and public to occupy polling stations before to events in which “with strong hos- the time the Autonomous Regional police tility agents were verbally assaul- force had been ordered to intervene, as ted”. It also makes references to the well as during the counting of the votes. existence of defiant and intimida- They also encouraged them to go and ting attitudes and to “hostile events vote en masse. This took place in seve- and, in some cases, violent”, even ral places of Catalonia, occassionaly though these were not the norm. leading to confrontations with police agents who had to use force.

2.2 The proven facts related to Jordi Cuixart’s conduct

The most relevant facts sustaining Jordi Cuixart’s sentence are found, as can be expected, under the heading of the facts proven by the sentence15. These facts are developed later and more deeply in the legal fundaments of the sentence16, to the concrete events attributed to Jordi Cuixart in relation

15 From page 23 of the Sentence. 16 Section dedicated to the Trial of Authorship, section 1.9, from page 384 of the Sentence.

18 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS with the crime of sedition. The sentence splits this analysis in several sec- tions, whose contents are summarized below:

1. The Ruling identifies Jordi Sánchez and Jordi Cuixart in the following way: “The defendants Mr Jordi Sánchez Picanyol and Mr Jordi Cuixart Navarro were the leaders of the Assemblea Nacional Catalana (ANC) and Òmnium Cultural (OC), respectively. Their contribution was deci- sive for the intended purposes. Both associations have a broad and his- torical background of mass mobilisation. Messrs Sánchez and Cuixart have an indisputable capacity for leadership. The lack of violence in mass gatherings added a hallmark that strengthened their power to at- tract support. Hence, both defendants took on a leading role in public mobilisation focused on holding the referendum” 17.

Regarding Jordi Cuixart specifically, the Judgement establishes that in“ his capacity as leader of the Òmnium Cultural association, with deep historical roots in Catalonia, he put his proven capacity for mobilisa- tion at the service of a political project that included the creation of a legality based on a break with the foundations of our legal system and pressure on the national Government by holding a public plebiscite that was to be presented to the citizenry- even though this was not true - as the genuine expression of the exercise of the right to self-determination”.

The specific action attributed to him is pushing“ the members of the pub- lic who supported the secessionist movement towards active resistance, towards de facto opposition to the enforcement of judicial orders or of any decisions by the authorities that contradicted or hindered the firm resolve to conduct a referendum based on an purported right to self-de- termination”. Non other action has been attributed to Cuixart beyond his role of encouraging the citizens to resist and disobey.

Before moving forward with the events, it is worth highlighting the fol- lowing statement from the Sentence: “Mr Cuixart’s subsequent actions show evidence that some statements that could be considered the con- sequence of ardent speeches and passionate rhetoric for the masses

17 Page 41 and following. 19 were not in his mind merely symbolism or metaphors, but rather when he spoke of “shutting down” the actions of the Civil Guard or shouted that neither the Civil Guard, nor the law enforcement agencies, nor the Constitutional Court, nor any court could thwart their aims, he was thinking of also offering material opposition - not just by legal means or by exercising the right to protest - to the enforcement of any potential court orders18.” In other words, the sentencing court ventures to dive into what this person was thinking in a specific moment in time.

2. Regarding Cuixart’s actions on the 20th of September 2017, the Ruling highlights the following activities: THE RULING OF PROCÉS AND RIGHT TO PROTEST a. He and others called upon the citizenry “via Twitter accounts, both those of the associations they led and their own, to gather outside the building of the aforementioned Regional Ministry,” where the legal searches were taking places. The content of the call is also highlighted: “they also divulged the location of the legal search, urged citizens to defend the Catalan institutions, demanded that the Civil Guard free individuals who had been arrested, and asked Catalans to mobilise, encouraging them by saying that they would not be able to overcome all of them and that the forces of law and order had made a mistake and had declared war on those who wanted to vote”.

b. He addressed the people congregated there and demanded the lib- eration of all of the detainees “and challenged the State to seize the material that had been prepared for the referendum. The Sentence cites and highlights the following two expressions (1) “They shall not pass!”19 and (2) “today there are tens of thousands of us here, tomorrow there will be hundreds of thousands of us wherever we are needed... have no doubt that we will win our freedom.”

18 P. 385. 19 The slogan “no pasarán” is historically associated in Spain (and elsewhere around the globe) with an- tifascist sentiment. During the siege of Madrid during the Spanish Civil war Republican leaders and militia fighters would use the slogan “no pasarán” (“they shall not pass”) whilst resisting General Fran- co’s forces. Upon taking Madrid, Franco is claimed to have said “hemos pasado” (“we’ve passed”). 20 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS 3. Regarding the events of October 1st 2017, the Sentence asserts that the movement “Escoles Obertes”20 “was supported, stimulated, in- creased and encouraged by Mr Jordi Cuixart, Mr Jordi Sánchez and their respective organisations” and that its purpose was “but of prevent- ing enforcement of the court order by force, by means of the build-up of people, an overwhelming and dissuasive numerical advantage and an attitude of passive resistance that, as has been substantiated by the wit- ness statements and the videos shown, not infrequently became active”.

The Court concludes this through an examination of the written and oral messages sent by Cuixart at different times in 2017: “OC [Òm- nium Cultural] were not only sympathetic towards the Escoles Obertes initiative, they also supported and encouraged it. These activities were directly and undisguisedly intended to prevent the closure of the centres that the Mossos d’Esquadra had been ordered to implement. Indeed, they issued appeals to use that mechanism and similar ones to make possible and facilitate the referendum (“Today from five o’clock onwards let’s all go to the schools” reads a tweet from OC) ”. The messages are:

a. Via Twitter: “peacefully defend the polling stations”

b. Via Twitter on 30 September: “no distraction, not even for a minute, the urgent question is to protect the polling stations so that millions of people can vote. Catalans, let’s defend the ballot boxes.”

c. Via Twitter on 1 October: “¡let’s stay calm. Let’s all keep our back- sides on the ground. They shall not pass. Anyone who can, go to Balmes secondary school in Barcelona.”

d. Via Twitter on 1 October: “peaceful resistance. Anyone who can, also go to Ramon Llull junior school in Barcelona.”

20 “Escoles Obertes” (Catalan for “Open Schools”) is a movement that sought to guarantee the open- ing of polling stations on October 1 through the effort of volunteers, who would present themselves before their opening (and, in some cases, even stay overnight in the polling stations themselves) and they would be located at the gates to prevent the centers from closing. 21 e. Via Twitter on 1 October: “Escola Ramon Llull, BARCELONA. Against aggressions, hands in the air and cry “we are a peaceful people”. This is our motto: peaceful resistance.”

f. Via Twitter on 1 October: “today the ballot boxes are defended, more than ever and in spite of everything. We call for a peaceful attitude in defence of democracy.”

In short, the Court’s interpretation of the content of these messages “was that defending the polls meant opposing the actions of officers of the law mandated by Judges and Courts.” THE RULING OF PROCÉS AND RIGHT TO PROTEST 4. The Sentence analyses then if the call to civil disobedience could justify in any possible manner Mr.Cuixart’s actions. The Court reaches two conclusions in this section. The first one is that, even when someone considers a ruling or order as unfair it does not exclude their obligation to follow the law. In the Supreme Court’s own words: “That call for a seditious uprising cannot be commended from the perspective of crimi- nal law on the basis of the convictions of the defendants or those who took up their organised and coordinated calls”. The second idea is that “the decision to bear the consequences, even the penal repercussions, of the conduct covered by civil disobedience is part of the essence of civil disobedience” and explains that any subsequent consequence other than the correct application of the law would logically subvert the desires and intentions of the author of the act of civil disobedience.

5. Finally, the Sentence analyses and discards the content of the expert’s report presented by the defense in terms of civil disobedience and fi- nally concludes that “[w]e can outline the responsibility of Mr Cuixart, which he does not deny, or conceal, or hide; indeed he expressed his determined will to continue aligning his conduct to that pattern - “we will do it again” - as regards mass opposition to state and regional law enforcement agencies. The officers were materially incapacitated in the face of the crowds that had gathered with an attitude, frequently of hostility and of outright opposition at all times. All the above accom- panied by an explicit or implicit declaration of physical resistance. Tak- ing advantage of their overwhelming numerical advantage, which was

22 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS intimidating or, at the very least, dissuasive, and at times of effective physical resistance that was generally, although not exclusively, pas- sive. That conduct falls, easily and undoubtedly, within the concepts of “force” or “outside legal channels” that define the outline of the offence of sedition, by means of obstructive intervention or the exercise of force and pressure to avoid being removed”.

To sum up, the sentence concludes that Jordi Cuixart committed a crime of sedition by taking advantage of his platform to mobilize the Catalan citizenry and push them to disobey and resist the authorities. He shared his message of civil disobedience via social networks and in person, ad- dressing the protesters in different occasions, and thus his acts would had as direct consequence the multitudinous opposition exercised against the State’s forces and services. That said, the Supreme Court underlines, and even goes on to praise, that his methods and intentions were always non- violent21.

2.3 The crime of sedition in the Sentence of the Procés

Knowing the proven facts of the judgement, it is now pertinent to analyze why the Supreme Court places them under the umbrella of the concrete criminality type of sedition.

With this in mind, it is important to understand the reasons why the Supreme Court discards that an act of rebellion took place, despite the efforts of the prosecution to prove this crime. The concept of “rebellion” is more or less clear: a grave, armed, unbearable act of violence committed with the purpose of breaking the constitutional order and the unity of Spain. In other words: a coup d’etat.

The sentence rightfully argues that the type of violence necessary to achieve the aforementioned purpose of ending the constitutional order occurred was

21 “The Chamber does not question its commitment to non-violence, always commendable. Nor is he the least bit suspicious of his pacifist convictions and his repudiation of violent actions” the Ruling indicates on page 242. 23 never proven. As the Court of Schleswig-Holstein (Germany) had already stated in its refusal to grant Carles Puigdemont’s extradition for this crime22, it is obvious that no acts of considerable violence took place on October 1st 2017, just as they did not take place in previous mobilizations, such as the one on September 20th 2017. The Supreme Court considers that the few, testimonial and sporadic episodes of violence that occurred that day were not instrumental – in fact, they were counter-productive – to achieve the ends of the rebellion (the independence of part of Spain’s territory). In other words, there was no bloody public uprising to put the constitutional order in check, and it did not even enter into the plans of the accused to exploit possible violence to achieve the fragmentation of Spain23. THE RULING OF PROCÉS AND RIGHT TO PROTEST Secondly, and as a consequence of the fact that the existence of the rebel- lion has been ruled out, it is necessary to analyze the definition of this crime contained in the article 544 of the Penal Code: the crime of sedition is committed by those who “without incurring in the offence of rebellion, pub- licly revolt in a tumultuous manner, by force or outside of the legal channels, to prevent the application of the Law or to prevent any authority, official corporation or civil servant from legitimately exercising their functions or complying with agreements or administrative or judicial decisions”.

Article 544 of the Spanish Criminal Code

The following are guilty of an offence of sedition: those who, without incurring in the offence of rebellion, publicly revolt in a tumultuous man- ner, by force or outside of the legal channels, to prevent the applica- tion of the Law or to prevent any authority, official corporation or civil servant from legitimately exercising their functions or complying with agreements or administrative or judicial decisions.

22 On July 12th, 2018, the Regional High Court of Schleswig-Holstein (Germany), denied the extra- dition of former Catalan President Carles Puigdemont to Spain on charges of a crime of rebellion, concluding that the acts committed by the defendant would not constitute any crime In Germany.

23 “But the verification of indisputable episodes of violence is not enough to proclaim that the facts integrate a crime of rebellion. Resolving the typicality judgment by answering with a monosyllable to the question of whether or not there was violence, implies incurring an analytical reductionism that this Chamber —even though this discourse has spread in other areas— cannot subscribe. The violence must be an instrumental, functional vi- olence, directly preordained, without intermediate steps, for the purposes that encourage the action of the rebels”, states the sentence on page 267. 24 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS This is without a doubt a highly complex phrase due to the abundance of indeterminate legal concepts it contains. It can be synthesized as follows: (1) it consists of a rising up, (2) done so tumultuously, (3) in order to prevent the application of the laws, (4) carried out outside the legal channels or through the use of force. But this definition does not explain, however, what the term “uprising” means. Nor what is meant by “tumultuously”. Is it tumul- tuous if more than 20 people participate? more than 200? than 30.000? than 500.000? And what is meant by “prevent the application of laws” through “the use of force” or “outside the legal channels”? Does it mean that there must be some form of violence, even if it is less intense than the one present in acts of rebellion? All this, therefore, requires a jurisprudential development by judges and courts, who after all in charge of carrying out the interpretation of the laws.

And so they did: the Procés Ruling establishes that the crime of sedition is committed when “an attitude of opposition to making their action possible, even via formulas of resistance - noviolenta resistance, if you like, to adopt the terminology of the expert evidence put forward by Mr Jordi Cuixart-. This negative response, in that scenario, even where it does not go one step fur- ther, is in itself apt and appropriate for meeting the requirements of the crimi- nal definition of the offence of sedition24.” Therefore, sporadic episodes of violence would not have any relevance when considering that the possibility of an act of sedition. Not a single violent incident had to have taken place and the sentence would have been the same, because what is important, ac- cording to what this Judgment says, is the existence of massive disobedience.

The reason given by the Supreme Court to explain why acts of non-violent resistance may constitute a crime of sedition is due to the fact that the crimi- nal type allows its commission “by force or outside the legal channels”. In other words, in the eyes of the Court, this means that the relevant acts can but do not have to be of a violent nature.

This extensive interpretation by the Supreme Court establishes that the ex- ercise of non-violent civil disobedience, aimed at preventing police work, may constitute a crime of sedition. Understanding article 544 in this way,

24 Page 283. 25 many disobedient demonstrations and protests - such as those that took place nine years ago, during the heyday of the May 15th or Indignados Movement or those that took place during the Stop Evictions actions of the Platforms of People Affected by Mortgages (with the acronym PAH, in Span- ish) - would constitute a crime of sedition.

Of course, these non-violent acts of resistance would only suppose the com- mission of a crime of sedition provided they were carried out in a massive and sustained way, because the ruling qualifies that “a one-time and sin- gularised opposition would exclude some ingredients that would perhaps derive us to other criminal definitions. But faced with this multitudinous,

THE RULING OF PROCÉS AND RIGHT TO PROTEST generalised and strategically projected uprising, it is not possible to avoid the definition of sedition” 25.

Thus, what the Supreme Court essentially determines is that a specific ac- tion that hinders the work of the police or another authority - regardless of whether any form of violence is used or not - can constitute a crime of dis- obedience, resistance or public disorder if it does not involve a significant number of disobedient people. But actions of this type, carried out in a mas- sive and coordinated way, in several places at the same time, do signify the commission of the crime of sedition, an offense that carries penalties ranging from five to fifteen years.

The Supreme Court thusly understands by “tumultuous uprising” the massive and widespread disobedience among the population and the territory, in such a way that respect and compliance with the laws and public authori- ties are questioned. “Uprising, therefore, is characterized by those aims connoting an insurrection or attitude of open opposition to the normal func- tioning of the legal system, constituted by the effective application of the laws, and the non- obstruction of the effectiveness of the decisions of the institutions”, is established26.

25 In the case of the events of October 1st, the sentence categorically affirms that the attempt to prevent compliance with a judicial order took place “in a generalized manner throughout the whole of an autonomous community in which for one day the execution of a court order”. 26 Page 282. 26 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS This is a position with which we deeply disagree. As we will explain later, we consider that, by definition, the concept of “tumultuous uprising” neces- sarily implies the existence of considerable violence.

2.3.1 Sedition is not a “minor rebellion”

Along these lines, the Chamber breaks with the definition provided by Judge Carmen Lamela, at that time Investigative Magistrate of the Central Investigating Court number 3 of the National Court - and currently a mag- istrate of the Supreme Court - when she issued the decision allowing to indicte27 the Major of the Mossos d’Esquadra, Josep Lluís Trapero28, for the events which took place on October 1st 2017.

In the above-mentioned resolution, she had summarized the crime of sedi- tion as follows:

“Sedition is a second-degree rebellion, as the criminal type itself only considers those who are not included in the crime of rebellion to be convicted of it. That is why, even though the Supreme Court ruling of July 3, 1991 indicates that ‘the rebellion tends to attack the normal development of the primary functions of legis- lating and governing, and sedition tends to attack the administrative and judicial functions instead’, this is not an obstacle to legally classify the facts as sedition when, without concurring the element of violence (which requires rebellion), the purpose of the participants in the uprising is not only to prevent the application of laws, the legitimate exercise of the functions of authorities, official corporations or officials, compliance with their agreements or administrative or judicial resolu- tions, but also illegally declaring the independence of part of the national terri- tory. The concurrence of this dual purpose, without using violence as happens in the present case, places us before an action of sedition much more serious from the perspective of unlawfulness, and, consequently, a greater devaluation of the unjust, as the last purpose of the same, in addition to the own one of this penal type, is the anticipated one for the crimes of rebellion”.

27 On April 4th, 2018. 28 Major Trapero was finally acquitted by the Criminal Chamber of the National Court, in its Judgement 20/2020, on October 21st. The Court concludes that there is no evidence pointing to the fact that the Catalan police was colluding with the Regional Government to allow and execute the referendum. 27 In other words, Judge Lamela believed that sedition was constituted by non- violent acts aimed at achieving the purposes or goals of the crime of rebel- lion —among which are ending the constitutional order and / or achieving the independence of a part of Spanish territory—, while the Procés Judg- ment distances itself from this position and determines that the purpose is indifferent or irrelevant. What matters to the Supreme Court is solely that the executive and judicial powers of the State, represented by the police and the courts, were disobeyed on a massive scale. Nothing else.

2.3.1 Public Order as a legal asset of sedition

THE RULING OF PROCÉS AND RIGHT TO PROTEST The basis for sedition, therefore, was the massive, widespread and non-vi- olent disobedience to the local and state police forces, as well as to orders issued by judges and courts29, regardless of the purpose behind that defi- ant attitude. It does not matter whether the motive behind the perpetrated acts were committed in order to defend the referendum of October 1st or to defend the unity of Spain... what is legally relevant, according to the Judg- ment, is the massive disobedience that occurred.

It could seem, thus, that the legal right being protected by the criminal con- cept of sedition is nothing other than the sanctity of judicial decisions and the due respect for the principle of authority. However, the Judgment denies this claim and ensures that the legal right protected by sedition is public order.

And what is public order? According to the Procés Ruling, “public order refers to the normal functioning of institutions and services”30. A definition

29 The National Police and National Guard acted on October 1, 2017 in compliance with the Order of a magistrate of the Superior Court of Justice of Catalonia, of September 27, which itself ordered “that, until October 1, the use of premises or public buildings —or those in which any type of public service is provided— for the preparation of the referendum celebration”. It should be noted, as anecdotal data, that of the 2,237 polling stations on October 1, 2017, more than 700 were in private premises, for which the mandate of the Superior Court of Justice of Catalonia did not affect them. 30 The Sentence provides this definition on p. 278, relying on other Judgments of the same Chamber, such as 1154/2010, of January 12. 28 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS that coincides, word for word, with the definition of public order contained in article 1 of the Francoist Law 45/1959 of July 30th, on Public Order31.

Ultimately, the Court considered that what determines whether a successful act of sedition has been carried out is the interruption of the normal func- tioning of the institutions —in this case, the police and judicial institutions— through acts of massive resistance and disobedience. And it distinguishes it from other simpler and less serious crimes, such as crimes of disobedi- ence to authority or public disorder, in the broad and compound nature of sedition. In other words, it is composed of a multitude of acts, both legal or illegal, that result in the practical ineffectiveness of the laws at various geographical points taking place simultaneously. The Court concludes in its Sentence that “the acts whose conjunction constitutes the criminal type may not be criminal in isolation”, but when viewed in connection with each other they are32.

2.4 Origin and Jurisprudential Evolution of the Crime of Sedition

Having analyzed the definition of the crime of sedition in theProcés Ruling, the next step is to analyze whether its interpretation is consequent or not with prior jurisprudence. In other words, the objective of this section is to clarify whether the conviction for this crime was foreseeable or if, on the contrary, the Supreme Court’s conclusions were new and groundbreaking in relation to pre-existing doctrine.

2.4.1 Jurisprudential evolution of the crime of sedition

The crime of sedition has undergone numerous legislative modifications since it was first regulated in the Criminal Code of 1822, as can be seen in the following timeline.

31 “The normal functioning of public and private institutions, the maintenance of internal peace and the free and peaceful exercise of individual political and social rights, recognized in the Laws consti- tute the foundation of public order. “ 32 Page 280. 29 It is defined as an «illegal and tumultuous uprising» of more than 40 people that, although they do not detach themselves from the obedience to Government, they do it, with or without arms, from the execution of any Law, act of Justice, legitimate service or authority’s providence.

“Art. 280. It is sedition the illegal and tumultuous uprising of the most part of a village or district, or a body of troops or portion of people, who exceed at least 40 individuals , with the purpose not to detach themselves of the obedience to the Supreme Government of the Nation, but to oppose, with or without arms, the execution of any Law, act of Justice, legitimate service or authority’s providence, or to attack or resist them or their Ministries violently, or to promote civil war, or to harm people or public or private property, or to

CRIMINAL CODE OF 1822 disrupt or cloud in any other way and forcibly the public order. For the sedition to be considered accomplished it will be needed for the seditious to insist on their purpose after being requested by the public authority to give in.” THE RULING OF PROCÉS AND RIGHT TO PROTEST

The crime of sedition was allocated among the crimes against homeland security of the State and public order, referring the penal provision uniquely to a public uprising (no reference to the turmoil) numbering three possible purposes of he seditious; to prevent the enactment and execution of Laws or the celebration of popular elections; to prevent any authority the free exercise of its faculties; or perform hateful or vindictive acts on an authority figure or its property, its agents or some type of citizens.

“Art. 174. They will be guilty of sedition those who uprise publicly for the following purposes:

1º Prevent the enactment and execution of Laws or the celebration of popular elections in any electoral board.

2º Prevent any authority the free exercise of its faculties or the fulfil- ment of their administrative or judicial providences.

3º Perform hateful or vindictive acts on an authority figure or its pro- perty, its agents, or some type of citizens, or to the State’s or Public Corporations’ belongings.” CRIMINAL CODE OF 1848 AND 1850

30 In the Criminal Code of 1870, the sedition crime was allocated in the Title regarding the cri- mes against public order with the rebellion, embracing a definition very close to the current one, in which the concept of «tumultuous» is recovered. 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS

“Art. 250. They will be guilty of sedition those who uprise public and tumultuously to achieve by force, or outside legal channels, any of the following purposes:

1º Prevent the enactment and execution of Laws or the celebration of popular elections in any province, constituency or electoral district.

2º Prevent any authority, official corporation or civil servant, the free exercise of their faculties or the fulfilment of their administrative or judicial providences. CRIMINAL CODE OF 1870

3º Perform hateful or vindictive acts on an authority figure or its agents.

4º Perform, with a political or social aim, any hateful or vindictive acts on individuals or any class of the State.

5º. Deprive, with a political or social aim, of all or part of its properties or some type of citizens to the municipality, or the province or the State or prune and destroy those properties.”

It remains, essentially, in the same terms. Attention is drawn to how in the Code of 1928 the- re were included factual situation such as «the partnerships of employers aimed to paralyze work» or «worker’s strikes aimed to fight public forces».

“Art. 289. They will be guilty of sedition those who uprise public, collectively, and tumultuously to achieve by force, or outside legal channels, any of the following purposes:

1º Prevent the enactment and execution of Laws, Royal Decrees or Regulation, or the celebration of representative elections in the Courts, Province deputation, delegate, counsellor, in any province, constituency or district.

2º Prevent any Authority, Court, official corporation or civil servant, the free exercise of their faculties or the fulfilment of their administra- tive or judicial providences.

3º Suspend or paralyze a public service of general interest of the

CRIMINAL CODE OF 1928 AND 1932 State, province, or municipality.

4º Perform hateful or vindictive acts on the person, family, or property of any Authority, its agents or civil servant for acts exercised in discharging the duties.

5º Perform, with a political or social aim, any hateful or vindictive acts on the person, family, or pro- perties of any individual or any class of the State.

6º. Deprive, with a political or social aim, of all or part of its properties to the owners, the municipality, or the province, or the State, or any kind of corporation ore determined class, or prune and destroy those properties.” 31 In the 1944 Code, the crime of sedition is again placed amongst the crimes against the in- ternal security of the State, using the definition and objectives contained in the 1870 Code.

“Art. 182: They will be guilty of sedition those who upri- se public and tumultuously to achieve by force, or out- side legal channels, any of the following purposes: 1º Prevent the enactment and execution of Laws or the celebration of popular elections in any province, constituency or electoral district. 2º Prevent any authority, official corporation or ci- vil servant, the free exercise of their faculties or the ful- filment of their administrative or judicial providences.

CRIMINAL CODE OF 1944 3º Perform hateful or vindictive acts on an authority figure or its agents. 4º Perform, with a political or social aim, any hateful or vindictive acts on individuals or any class of the State. 5º. Deprive, with a political or social aim, of all or part of its pro- perties or some type of citizens to the municipality, or the province

THE RULING OF PROCÉS AND RIGHT TO PROTEST or the State or prune and destroy those properties.”

The 1973 Criminal Code followed the same line, maintaining the crime of sedition among the crimes against the internal security of the State. It considers an act of sedition as a public uprising and tumult, and with the double modality of “by force or out of legal channels” that is still in place today.

“Art. 182: They will be guilty of sedition those who upri- se public and tumultuously to achieve by force, or out- side legal channels, any of the following purposes: 1º Prevent the enactment and execution of Laws or the celebration of popular elections in any province, constituency or electoral district. 2º Prevent any authority, official corporation or ci- vil servant, the free exercise of their faculties or the ful- filment of their administrative or judicial providences. CRIMINAL CODE OF 1973 3º Perform hateful or vindictive acts on an authority figure or its agents. 4º Perform, with a political or social aim, any hateful or vindictive acts on individuals or any class of the State. 5º. Deprive, with a political or social aim, of all or part of its pro- perties or some type of citizens to the municipality, or the province or the State or prune and destroy those properties.”

32 With the enactment of the 1995 Criminal Code, the last modification to date of the crime of sedition was made. The list of the purposes of sedition was abandoned and incorporated into the sole paragraph of Article 544, moving from an uprising “to” achieve something to 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS an uprising “to prevent” something.

“Art. 544: The following are guilty of an offence of sedition: those who, without incurring in the offence of rebellion, publicly revolt in a tumultuous manner, by force or outside of the legal channels, to prevent the application of the Law or to prevent any authority, official corporation or civil servant from legitimately exercising their functions or complying with agreements or administrative or judicial decisions” CRIMINAL CODE OF 1995

The first legal reference to sedition in democracy appeared in the Ruling of the Second Chamber of the Supreme Court of October 10th 198033 and was issued with regard to the events that took place on March 9th 1978, concerning a group of participants, among whom were the defendants, who had agreed to summon people from Huesca (northern part of Spain) with the aim of preventing a judicially-ordered eviction. In order to do so they distributed pamphlets in which phrases such as “Let us not allow this family to be evicted, let us come on Friday the 10th at 4 in the afternoon to prevent the eviction” and “It depends on our presence that this family does not lose their home” could be read. The judge finally suspended the eviction as a result of these actions, without it being unequivocally proven whether or not the defendants and their neighbors actually went to the home of the evictee or not on the date in question.

In this Judgement, the Supreme Court – who studied the case ruled after the initial ruling had been appealed – found the defendants to be perpetrators

33 In the Supreme Court ruling of 1980 a sentence passed by the Huesca Provincial Court on June 20, 1979 was confirmed. The Penal Code in force at the moment was Franco's 1973, so the Judgment develops what it understands for this crime based on said legal text. 33 of an act of sedition in a degree of provocation, while concurring with the highly qualified extenuator of acting for moral and altruistic reasons, and sentenced each of them to three months of major arrest. The Court established that the crime of sedition requires a revolt to take place, which is understood as “an uprising, revolt or insurrection directed against the established legal order, against the normal functioning of certain institutions or against authorities, officials, public corporations, classes of the State, individuals or classes of people”. In addition, it also considered that the uprising must necessarily be public and tumultuous, which does not mean that it has to be chaotic; it can actually be very well organized. It must, moreover, be oriented towards the achievement of the stated purposes, “by

THE RULING OF PROCÉS AND RIGHT TO PROTEST force, that is, in a violent way —violence, whether absolute or compulsive, and as much on people as on things — or outside legal channels, that is, illegally, illegitimately or illegally and not through remedies or procedures for claims or disagreements that the Law arbitrates or prescribes.” And it adds that it must, finally, be plural34, since, and as the Ruling warns, other- wise it can be confused with other minor crimes, such as those of assault, resistance or disobedience.

This Ruling is cited in the Procés one35 when it is argued that the crime of sedition does not require the uprising to be necessarily violent. Similar to what is argued in the 1980 Ruling, when the legislative branch introduces in the Penal Code two alternative means (“by force or outside the legal channels”) the crime can be committed using only one of the listed means, without both of them being required.

More rulings have been issued since the 1980 Sentence, but none devel- ops the criminal act of sedition in such depth.

The Judgement 1614/1983 of the Second Chamber of the Supreme Court of April 5th 1983 is also relevant. This ruling refers to a riot that took place in January 1978 at the Zaragoza Detention Center on the occasion of the visit of MP Felipe González and Adolfo Suárez (Head of Government at

34 In this sense, it refers to a Supreme Court ruling of 1934, which requires that the number of people participating in the riot be at least 30. 35 Page 281. 34 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS that time) along with other parliamentarians. Common prisoners demanded a general pardon similar to the amnesty given to political prisoners. As the situation escalated, several fires broke in the center, with two prisoners dying from suffocation, and there were several self-inflicted injuries, barri- cades, riots, etc. which resulted in a series of damages valued at 16 million pesetas. Once the security forces entered the center, the inmates drew back without presenting any fight or confrontation and the riot ended.

In this Ruling, stemming from an appeal, the Supreme Court upheld the conviction for those accused of contempt and sedition crimes. The prison- ers had filed appeals alleging that they had given up their violent attitude before the crime had been consummated, but the Supreme Court consid- ered that such withdrawal occurred only because the crime had already concluded and not as a consequence of the intimidation carried out by the law enforcement.

Subsequently, in 1985 the Provincial Court of Seville sentenced the former mayor of the district of Los Corrales in 1982 for a crime of sedition since, in solidarity with the general strike called that year, he issued a Decree on the same July 29th 1982 in which he ordered the suspension of all municipal activity. The Supreme Court in its Judgement 10593/1988 concurred with one of the appeals raised by the defense, without needing to assess the rest, and thus annulled the Sentence. In their opinion, and after analyzing the concept of public service contained in article 222.1 of the Criminal Code of 1973, they considered that the mere suspension of public activi- ties did not imply that public services were affected, and that never having been established which specific public services were affected or to what extent, the sentence should be revoked.

Years later, the Supreme Court Ruling 7595/1991 confirmed the acquittal of the defendants in charged with the crime of sedition for acts related to the destruction of an aquifer facility in protest to the transfer that was to take place. In this sentence, the Supreme Court distinguished the crime of rebel- lion from the crime of sedition, noting that the first tends to attack the primary functions of legislating and governing, while the second tends to attack the secondary functions of administering and judging. Finally, the Court upheld the acquittal of the defendants on the grounds that, as determined in the in

35 the Penal Code of 1973, one of the underlying requirements for commit- ting an act of sedition is to do so with “political or social intent”. Since no such political or social intent had been proved in the trial, the charge was dismissed.

2.4.2 The 1995 crime of sedition’s reform and modern jurisprudence

The last modification to date of the crime of sedition can be traced back to the promulgation of the 1995 Penal Code. It abandoned the list of the seditious’ purposes, incorporating them into a sole paragraph in article 544, ranging from the uprising “to” get something to the uprising to “pre-

THE RULING OF PROCÉS AND RIGHT TO PROTEST vent” something, its phrasing being as follows:

“They will be considered convicts of sedition those who, without being in- cluded in the crime of rebellion, rise up 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 or the fulfillment of their agreements, or of administrative or judicial resolutions“.

Here the Ruling 10/2003 of the Provincial Court of Cádiz, Section 6, of April 21st 2013 deserves special mention as the first judgment to deal with the newly founded crime of sedition. In this case, as a result of the damage caused by heavy rains, several people being tried entered the entrance hall of the Ceuta Assembly demanding a solution and staying peacefully on its premises for no less than nine hours. At one point the Lo- cal Police required them to leave the place, which they refused to do and thus had they had to be forcefully taken out, resulting in incidents involv- ing kicking, pushing and the throwing of objects. The defendants were accused of a crime of sedition, an accusation that was rejected by the Court, arguing that it was necessary to prove that the defendants sought to hinder the normal functioning of the Assembly with a “purpose of politi- cal or social subversion, fact that the Court did not considered proven”, since according to the Court, the only thing the defendants claimed was an occupational solution for the victims of the rainstorm.

36 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS It is striking that this time, and despite what happened once the police re- quired the defendants to leave the place, it was understood that the right of claim was exercised without the use of force or outside the legal chan- nels, since according to the Court’s reasoning “until such defendants were instructed to evacuate the entrance hall of the Assembly building, none of them acted uneventfully, behaving themselves peacefully”.

In 2011, the Criminal Court number 1 of Vigo sentenced several defen- dants for committing the crime of sedition as stipulated in article 559 of the Penal Code. According to the proven facts of this sentence, a multi- tude of people went to the plaintiff’s house in retaliation for the urban plan- ning lawsuit that she had filed against them, with the aim of preventing her from exercising both the right to denounce and the right to continue with the urban planning files, as well as with the intention of constraining her to leave the parish and preventing her from exercising her freedom of residence. On this occasion, the crime of sedition was considered fully committed once the defendants ignored the requests made by the officers, who stated at the trial that “it was impossible to remove them from there.” The 5th Chamber of the Provincial Court of Pontevedra, in its Sentence 355/2013 of July 29th 2013, confirmed the conviction on appeal.

2.4.3 The crime of sedition and legal certainty

As we can observe, the jurisprudential precedents related to the crime of sedition, especially since its last modification, are scarce and quite miscellaneous. Most of them do not carry out an in-depth analysis of all the elements that constitute the crime of sedition, being the Supreme Court Sentence of 1980 – prior to the last legislative reform of 1995 – the first that pursues this analysis further, being cited in many of the subsequent sentences. Nor do we find in the analyzed jurisprudence any precedent that went into depth to examine whether or not violence is an indispens- able requirement for the commission of this crime. To this we must add that in most of the analyzed sentences, acts with an eminently violent charac- ter were ultimately prosecuted.

The Criminal Code describes the crime of sedition as an uprising to pre- vent the normal work carried out by institutions “by force or outside the

37 legal channels”. But as we have observed, there are rulings in which the mere refusal to comply with an order or a request is sufficient to meet these requirements; and others in which, on the contrary, the Courts considered that the defendants had not upraised by force or outside the legal chan- nels in spite of ignoring requests, because their actions always remained peaceful.

In this context in which we find a crime with very few precedents and with several possible interpretations regarding different important points, such as the meaning of the expression tumultuous uprising, or the need or not for violence and the timing and purpose of it, or of the concept of

THE RULING OF PROCÉS AND RIGHT TO PROTEST out of legal channels, the interpretative margin that the Supreme Court had in the Procés Trial was quite wide. And it is precisely for this reason that the interpretation that the Court finally carries out in the Ruling, which concludes that the existence of certain hostility, or intimidating, daunting or insulting attitudes is enough to understand the crime as committed, can be classified as unpredictable, selective and against the defendant, and therefore, not admissible.

It is striking how the Procés Ruling has found its support in the interpreta- tion made in a 1980 sentence, almost forty years earlier and with a differ- ent Penal Code, in which the crime of sedition was considered committed – albeit in a degree of provocation – by the mere fact of summoning to paralyze an eviction, without a single mention in the appeal on anything related to the summons’ incitation to violence. This is a decision difficult for us to imagine made nowadays, after thousands of evictions have been paralyzed in our country in the last decade, with the European Parliament even awarding the European Citizen Prize to the Platform of People Af- fected by the Mortgage (PAH) that summons most of the Stop Evictions actions to this day.

The interpretation made in the Procés Judgement also introduces new interpretative elements that remain still quite difficult to assess, such as the “questioning the functioning of the democratic constitutional State” as an important part of the crime of sedition even while exercising the right to peaceful assembly; after all, this is precisely the right that the leaders of Òmnium Cultural and the Catalan National Asembly were exercising

38 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE PROCÉS when making the calls to peacefully resist and carry out the referendum. When should one consider that the questioning of the democratic and constitutional State has gone too far and should be considered criminal is one of the questions left unanswered by the Supreme Court’s ruling. Thusly, the border separating a mere crime of disobedience with a sedi- tious coordinated resistance remains blurry at best.

39

3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS

3.1 Sedition and rights of assembly and expression

As we have already explained, the Procés Judgement, in what seems to us to be a historical error, supports at all costs the principle of authority, punish- ing with hard prison penalties of up to 13 years — the same conviction a crime of homicide would receive— for those who undermine authority pub- licly and, supposedly, incite mass disobedience. Thusly, according to the Supreme Court what lies at the core of the crime of sedition is the promotion of a public and riotous uprising, which can be non-violent, carried out in order to prevent an authority from exercising its legal functions.

With this interpretation, the Supreme Court has created a dangerous prec- edent as it makes it possible to classify a peaceful protest as a crime of sedition if it involves massive disobedience to law enforcement officers or judicial rulings.

As previously pointed out, examples quickly come to mind such as the In- dignados or May 15th Movement —in which citizens peacefully occupied the central squares of Spain’s main cities for weeks, defying governmental orders to abandon them— or a good number of initiatives promoted by organizations that support access to decent housing for everyone in which large groups try to paralyze evictions by blocking access to the evictees’ buildings.

41 In both cases, all the requirements of the crime of sedition presented in the Sentence analyzed are met: a tumultuous mobilization that disobeys the public authorities and prevents the fulfillment of laws. With the Supreme Court’s interpretation of the crime of sedition, these non-violent social move- ments would have committed the crime of sedition several times indeed.

This leads José Luis Martí, professor of Philosophy of Law at the Pompeu Fabra University, to conclude – correctly in our opinion – that “what the Supreme Court has done in this Judgement is fundamentally an extensive interpretation of the criminal act of sedition that unacceptably cutbacks the 36 democratic freedoms of demonstration and protest”. THE RULING OF PROCÉS AND RIGHT TO PROTEST Next, we will analyze the jurisprudence of the European Court of Human Rights (hereinafter ECHR) in relation to the right of protest and demonstration – both grouped under the heading of the “right of assembly” – and its limits, in order to prove why the concept of sedition used in this Sentence implies an unacceptable interference in these constitutional rights.

3.1.1 The right of assembly

It is inevitable to find imprecise and fluctuating borders between the exercise of fundamental rights and the commission of both administrative offenses and/or crimes. These fuzzy limits must be studied in order to be able to af- firm when the right to assembly has been legitimately exercised and when, in excess of said right, the crime of sedition of art. 544 CP may arise.

The exercise of the freedom of assembly37 necessarily implies the exercise of the freedom of expression38, since the purpose of any meeting is, at a minimum, to raise public awareness over a concrete opinion. Therefore any restriction on the freedom of assembly, whether justified or unjustified, implies also an indirect restriction of the freedom of expression.

36 “An exotic right. Protest and sedition in the Procés sentence”( CTXT). 37 Articles 21 of the Spanish Constitution and 11 of the European Convention on Human Rights. 38 Articles 10 of the Constitution and 20 of the European Convention on Human Rights. 42 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS The assessment whether the freedom of assembly, right recognized under article 21 of the Spanish Constitution, has been legitimately exercised has to be determined according to the following parameters established by the ECHR and incorporated by the Spanish Constitutional Court:

1. Being one of the pillars of democratic societies, this right cannot be interpreted restrictively39.

2. The legal concept of an assembly is different from the usual meaning we citizens give to it. Legally, an assembly is any congregation of people united for a common purpose, even if the meeting does not comply with the procedures required by domestic legislation (such as prior communication, required in Spain) or even if the State or the par- ticipants qualify it as such or as any other way40: an event, a march, a performance, a sit-in, etc.

3. The right of assembly must be peacefully exercised. However, certain disruptions or slight acts of force are tolerated, such as brief occupa- tions of buildings with peaceful will, occupations or obstruction of pub- lic spaces and roads, or even preventing third parties from carrying out certain activities that protesters disapprove41.

4. The right of assembly must be protected even if there is a risk of vio- lence due to the existence of circumstances beyond the control of the organizers (for example, that groups opposed to the protesters may break in and cause clashes). Nor it loses it peaceful character in case of sporadic violence caused by any participant of the meeting of his or her own accord. The protection of the freedom of assembly covers all gatherings of people united with the same objective, except those in which organizers and participants have violent intentions, promote violence or in any way reject the foundations of a democratic society.

39 ECHR rulings Djavit An v. Turkey § 56; Kudrevičius and other v. Lithuania, § 91; Taranenko v. Rus- sia, § 65. 40 ECHR Ruling Navalny v. Russia § 98. 41 ECHR Ruling Cisse v. France, §39-40; Kudrevičius and others v. Lithuania, § 97; Steel and others v. United Kingdom, §92. 43 5. Of course, our courts believe that when individuals use violence or intend to use it taking advantage of a meeting, authorities have some space to interfere or restrict the right of assembly and impose a penalty for such reprehensible acts. But even in these cases, when the confron- tation with the police is unarmed or limited to throwing of stones or other objects without causing serious damages, long prison terms can- not be imposed without falling into disproportionality42.

3.1.2 The restrictions on the right of assembly

Taking these parameters into account, we can ask ourselves when does the

THE RULING OF PROCÉS AND RIGHT TO PROTEST ECHR allow authorities to interfere or restrict the exercise of the right of as- sembly. ECHR doctrine allows interferences as long as the three following conditions are met:

a. The restriction must be prescribed by law.

b. The restriction must seek one or more legitimate purposes.

c. he restriction must be necessary in a democratic society.

The first condition, that “interference must be prescribed by law”, means much more than simply the mere existence of a law which allows this restric- tion; it also refers to the quality of the law, meaning that the law must be formulated with sufficient precision to enable the citizen to understand when the State can activate said restriction, as well as to reasonably predict what consequences may derive from its non-compliance.

The second requirement, “that the law must pursue one or more legitimate aims”, implies that a gathering can only be restricted in order to protect one of the following protected legal assets: national security, public safety, defense of order and prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others. Furthermore, these concepts must be interpreted restrictively so as not to use them as excuse in case of mere political inconvenience of the meeting.

42 ECHR Ruling Gülcü v. Turkey, §115; Yaroslav Belousov v. Russia, §180; Barabanov v. Russia, §74-75. 44 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS As for the statement that the restriction must be “necessary in a democratic society”, it means that the interference must be essential. In other words, there may not exist any alternate options equally efficient and less restric- tive. It implies also that the restriction has to be proportionate, so that there is no imbalance between actions and their punishments or restrictions.

3.1.3 The definition of sedition according to the Supreme Court and its interference with the freedom of assembly

Once the parameters have been established, there are evident chiaroscuri that lead us to insist that the crime of sedition, as understood by the Su- preme Court in the Procés Ruling, can unduly and illegitimately interfere in the exercise of the freedom of assembly in certain cases.

Firstly, it is clear that any peaceful gathering can be considered a tumul- tuous uprising, since according to The Procés Judgment (459/2019) a “seditious” gathering does not need any type of violence, being the mere attendance of a crowd sufficient43.

The purpose of the gathering to “impede or obstruct the fulfillment of laws or orders”, as established by the criminal act of sedition, does not allow us either to clearly distinguish a seditious meeting from a non-seditious regular meeting, given that many gatherings are held precisely for these aims and are still protected by the constitutional freedom of assembly. Furthermore, since assemblies are an ideal vehicle to express political and social opin- ions in a collective way, it is frequent to find gatherings held expressly to protest against laws or government orders in which the embodiment of the disobedience is the driving force behind the protest44.

43 “Those who understand that, despite this wording in alternative terms, the requirement of violence in the crime of sedition is inherent to the word” uprising “, they depart from the grammatical meaning of that word. In the twenty-four meanings that the RAE dictio- nary associates with the voice “raise” or “rise”, none of them is exclusively linked to the use of violence “. Law Foundation B) Judgment of Typicity; Section 4.4. 44 Think, for example, of sit-ins or massive chains to protect natural spaces against interventions fore- seen in urban planning plans; in occupations of historical buildings designed to prevent their demo- lition; in road or port cuts to prevent the export of war material; or in the aforementioned concen- trations organized with the intention of paralyzing evictions of houses ordered by the courts. 45 On the other hand, there are also regular meetings that are held in spite of the prior prohibition issued by the Government Delegation or the Superior Court of Justice for its celebration, and they do not constitute a crime of sedi- tion. Certainly, gatherings cannot be punished as a crime of sedition for the mere fact of being in a situation of disobedience45.

And even if the purpose of the meeting is not to disobey any given law or order, it is also frequent that circumstantial disobediences arise throughout gatherings, such as refusals to dissolve a meeting at a certain time, road- blocks, occupations of gardens or public squares, intrusions into public buildings, etc. THE RULING OF PROCÉS AND RIGHT TO PROTEST In all of these cases, either these excesses cannot be punished as they are part of the legitimate exercise of the freedom of assembly, or the State has many other mechanisms to interfere these meetings without employing the crime of sedition. Examples of this include changes in schedules or routes, impositions on the organizers, fines or even the dissolutions of meetings. These measures must always be considered in proportion to the risk caused.

Therefore, we can conclude that a peaceful crowd with the objective of preventing the application of a certain law or administrative or judicial order, can be either a legitimate exercise of the right of freedom or a mob committing an act of sedition. The only distinction may arise from the im- precise and indeterminate legal concept set forth at the Procés Judgment as “effectively calling into question the functioning of the democratic State 46 of law” . A concept that goes beyond the purposes stated in the previous sentences, since these refer only to the interruption of the normal functioning of the institutions through acts of resistance and massive disobedience.

45 Take for example the 15M in Madrid. The massive encampment at Puerta del Sol came after the Government Delegation prohibited various associations and social entities from demonstrating at that Puerta. The camping was a reaction to that ban.

46 “Ultimately, the principle of proportionality proper to democratic criminal law requires assessing whether the tumult imputed to the authors effectively calls into question the functioning of the democratic rule of law” Legal Basis B) Criminality of the facts; Section 4.3. 46 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS 3.1.4 “Calling into question the functioning of the democratic rule of law”

This is a liminal, diffuse, broad and new concept, having been coined for the first time by the Procés Judgement itself. We can assimilate it to “ques- tioning the functioning of public institutions”.47 After introducing this obscure concept, the Supreme Court adds that “what motivated Mr. Sànchez’s ac- tion was to demonstrate to the entire society, in full and accredited concert with government officials, that the Judges and Magistrates exercising their constitutional function in Catalonia had lost their capacity to execute their resolutions”. In other words, the Procés Ruling establishes that disobedience to a specific order – the prohibition of holding the referendum – led to the loss of the constitutional power of judges and magistrates and the question- ing of the proper functioning of our Rule of Law.

This same intentionality that the “show of force” seeks (using the terminology of the Judgment), is what guides many gatherings, as the aforementioned stoppages of evictions, sit-ins or chains before the police, since the objec- tive of all disobedience is to make visible said opposition in order to win the support or sympathy of the citizenship and to join their cause. On the other hand, questioning or disobeying a certain judicial or administrative order does not imply, at all, questioning the rule of law; it only questions, from the point of view of the organizers and participants, the intrinsic justice of said law or specific order.

As discussed above, our Courts require that the law be clear and precise when it comes to restricting the freedom of assembly, since only in this way can citizens foresee with certain security the consequences derived from organizing a meeting. This concept of “questioning the functioning of the State” is neither clear, precise nor predictable, because it leaves to a Court to decide whether a peaceful breach of a law or order is a simple excess without legal consequences, an administrative fine or even a wide range of crimes ranging from disobedience to sedition. This decision implies a

47 In fact, this same expression seems to contradict the democratic postulates. If to question an affir- mation or postulate is to be taken into consideration as criminal intent, then doing so effectively equals to providing logical and valid reasons to doubt the rule of law as it is conceived in today. A position that is not only valid but even recommendable since democracy is a continuum that is always capable of improvement. 47 sanction arc that could range from a mere minor offense punishable by a fine of less than 600 euros48 to a crime of sedition punished with 8 to 15 years in prison. Between both extremes we would find higher administrative fines and crimes with lesser penalties such as disobedience or resistance to authority. This high degree of insecurity violates the jurisprudential require- ment that the restriction must be prescribed by Law.

Currently the Supreme Court maintains that the more successful a peaceful meeting may be, the more uncertainty exists regarding possible sanctions; that is to say, the more citizens exercise their civil rights, the more possibili- ties of the crime of sedition we will find. What is even worse, the success

THE RULING OF PROCÉS AND RIGHT TO PROTEST of the call does not even have to be attributed to the organizers, taking into account the unpredictable impact that the Internet and social media may have nowadays.

To the uncertainty of the consequences of organizing or participating in a potentially seditious gathering, we must add the “chilling effect” provoked to future citizens as they realize that organizing or participating in peaceful gatherings might be punished with astonishingly high prison penalties49.

In this specific case we are analyzing, the imposition of prison terms of up to 15 years for the participation or organization of peaceful demonstrations (or with sporadic violence alien to the claims of the organizers) serves as a psychological barrier that can perfectly prevent citizens from organizing new meetings designed with the objective of challenging the application of laws or administrative or judicial orders. The ECHR has repeatedly stated that this mere disproportion between the excess in the exercise of freedom

48 See Organic Law 1/2015 of Protection of Citizen Security.

49 The concept “chilling effect” means that the penalty for an excess in the exercise of a right must be proportional to the gravity of the facts, because if the penalty was very high, citizens would be dis- suaded from continuing to exercise that right. It is a principle stated for the first time by the US Su- preme Court (Brown v. Hartlage, 1982) and adopted by the ECHR and our Constitutional Court (Judgements 136/99, of 20/07 or 88/2003, of 19 / 05). 48 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS of assembly and a sanction is sufficient to render void any type of punish- ment imposed by a State50.

3.2 Civil disobedience and the crime of sedition

Before moving on, it is of paramount importance to dedicate a section of this study to discuss the exercise of civil disobedience, given its importance in the Trial and in the Procés Ruling. From the very initial stage, two of the accused – Jordi Cuixart and Jordi Sànchez – framed their behaviors within this form of non-violent protest. But while the Supreme Court accepted this position, it also expressly placed their behavior outside of the boundaries of the exercise of the right to peaceful assembly.

3.2.1. The concept of civil disobedience

Due to the many and different ways of understanding civil disobedience throughout history, one can also find a certain diversity of definitions. Taking the definition made by John Rawls, this would be a “non-violent, conscious and political public act, contrary to the law, habitually committed with the purpose of causing a change in the law or in government programs”51.

Bearing in mind this definition, we can affirm that civil disobedience is always public insofar as it is a political act, based on the intention to bring about change in the law or the way to apply it.

Likewise, civil disobedience must necessarily be a conscious act – because whoever unconsciously disobeys is not exercising civil disobedience – as well as public, initiated by those who decide to disobey a norm when they understand its unfairness. For this reason, civil disobedience starts from a

50 A very clear example of this principle is seen in the ECHR Ruling Federico Jiménez Losantos v. Spain, where the ECtHR understood that although an insult is not covered by the right to freedom of speech and is excessively punishable, doing so with a prison sentence is a disincentive for other people to exercise their right to freedom of speech with mere provocative ends, to polemicize or to generate public debate. Therefore, the insulting person should have been sanctioned, but with a different penalty: fine, public rectification, etc.

51 John Rawls, Theory of Justice, Mexico, F.C.E., 1979, p. 332. 49 iusnatural conception of the world, that is, it defends the existence of previ- ous universal rights, superior and independent of written, or positive, law. Therefore, what is legal can be differentiated from what is just, understand- ing that justice emanates from either a higher natural law, consciousness or even a divine law, depending on the theoretical school we are affiliated to. And since law and justice are not always coincidental, civil disobedi- ence proclaims that insofar there is a conflict between the two, citizens must always side with justice, even if it implies disobeying the law. In Ghandi’s words: “the law of the majority has nothing to say where it is up to the conscience to speak”.

THE RULING OF PROCÉS AND RIGHT TO PROTEST This disobedience must be carried by non-violent means, though the defini- tion of non-violence itself poses also several difficulties. Depending on the philosophical current, non-violence has been represented with up to three different spellings that hide different conceptions of same: nonviolence, non violence and non-violence. In any case, we can affirm that all of them coin- cide in the rejection of violence and aggression in all its forms. Depending on the trends, and without the intent of carrying out an exhaustive analysis, non-violence can be understood either as a philosophy of life, which would be the so-called holistic or ethical conception of non-violence, deep rooted in religious beliefs, either as a form of conflict resolution and political ac- tion, highlighting its socio-political nature, trend which has been called the pragmatic conception of non-violence.

Regardless of the conception, we always start from the idea that civil disobe- dience implies a disobedience, necessarily non-violent and thus renouncing to the use of any means that may imply carrying out any kind of aggression, whether direct or symbolic.

Moreover, civil disobedience is commonly understood as a sequence of actions: when one consciously disobeys a norm, the eventual judgment and its punishment must necessarily be assumed in order to demonstrate the injustice of the norm, as well as a way of recognizing that this act of civil disobedience is not giving up the general duty of obedience and the recog- nition of that duty towards other citizens52. However, the assumption of the

52 John Rawls, Theory of Justice, Mexico, F.C.E., 1979, p. 332. 50 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS punishment also generates deep and diverse philosophical debates since ancient times, such as the one carried out by Plato in his Crito dialogue, a description of the desperate and futile attempt of Socrates’ disciples to convince him to escape from the cell in which he was waiting to serve the death sentence to which he had been sentenced, which they considered unjust.

We could continue collecting testimonies of civil disobedience throughout history, but it would take many pages to do so. What we can conclude is that disobedience to unjust laws, norms or mandates represent one the engines of History and of the progress of humanity towards the recognition of rights that nowadays are evident to us, but that long ago were denied through formally legitimate laws. History is riddled with unfair laws that could only be repealed after the disobedience of, first, a few people, who led the way so that, little by little and not without paying a high price, the rest of society would end up recognizing injustice from these laws.

3.2.2 The Procés Judgement and civil disobedience

Returning to this report’s purpose and to the fact that the Supreme Court’s rul- ing on the Catalan Procés has addressed the phenomenon of civil disobedi- ence and non-violent resistance, it is worth asking oneself about the impact that the Ruling will have on the legal assessment of future acts of this nature.

During the Procés Trial, the defenses of Jordi Cuixart and Jordi Sànchez – who led two civil society organizations and did not hold any public of- fice – argued that the actions of their defendants were framed within the exercise of the fundamental rights of assembly and freedom of speech. They admitted during the trial that in their role as leaders of Òmnium Cultural and the Catalan National Assembly they had issued calls for sit-ins and acts of non-violent resistance, always within the framework of their exercise of these rights.

Thus, for example, Cuixart’s defense brought forth the report that the Special Rapporteur on the rights of freedom of peaceful assembly and association and the Special Rapporteur on extrajudicial, summary or arbitrary execu- tions regarding the proper management of Demonstrations issued in 2016,

51 addressed to the Human Rights Council, in which it was recognized as part of the exercise of the right to assembly to perform acts such as sit-ins, even if they were prolonged in time53.

In this same sense, the same defense team contributed to the procedure an expert’s report – ratified in the act of the oral trial – signed by John Paul Led- erach54 and Jesús Castañar Pérez55, in which they analyzed the mobiliza- tions object of the prosecution’s report to try to categorize them according to the criteria established by one of the main theoreticians on non-violence, Gene Sharp.

THE RULING OF PROCÉS AND RIGHT TO PROTEST Their conclusions were that the mobilizations that took place obeyed a non-violent logic, fitting each of the actions into the different methods of ac- tion of this nature categorized by Sharp. They recognized the existence of specific episodes of violence, which they explained as acts of non-violent non-discipline by some of the people mobilized. On the other hand, when analyzing Cuixart’s speeches, slogans and acts, they maintained that these fit within the logic of non-violent leadership.

As for the prosecutors, they held that the actions of both defendants were essential to what they called the Catalan “period of insurrection” of 2017. The prosecutors refused to consider the mobilizations called by Òmnium Cultural and the Catalan National Assembly in isolation, but rather stated that both defendants put their respective organizations, and their mobili- zation capacity, “at the service of a political pressure maneuver that had been devised in concert with the rest of the defendants”56. The prosecutors also stated that the role of both defendants was essential in trying to hinder and block judicial action in Catalonia. Additionally, they denied that the demonstrations could be considered as peaceful or non-violent, given, for

53 Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and associ- ation and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of protests, paragraph 10. 54 PhD in Sociology from the University of Colorado and BA in History from Bethel College. 55 Degree in Sociology from the Complutense University of Madrid and doctor in Historical Re- search from the University of Castilla-La Mancha. 56 As finally declared so proven. Third Proven Facts of the Judgment (p. 27) 52 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS example, the large number of injured among the ranks of the police officers at the end of the day on October 1st 2017.

The debate could not have an intermediate solution, since hardly the same fact can be considered as an exercise of a fundamental right and, at the same time, as constituting of a crime.

The Judgement resolves this dilemma by excluding the mobilizations under the protection of the exercise of the right of assembly, insofar as “the legiti- mate sphere of protest and struggle for their own political and social ideas were overwhelmed when it became a physical opposition, a material im- pediment to the execution of judicial decisions and the de facto – imposed – derogation of constitutional principles, in a certain territory, on certain dates”57. Thus, for example, the Judgement finds that the mobilizations car- ried out on September 20th in front of the Regional Ministry of Economy and Finance had the purpose of preventing the fulfillment of the judicial resolu- tion agreed by registration of these headquarters. In the same vein, and regarding the events October 1st, the Court’s findings reproaches that the mobilizations tried to physically prevent, as it happened in some schools, the entry of police officers. And, finally, the Court argues that these type of actions, that is, preventing compliance with a judicial order by accumulat- ing people, even accepting that they carried out non-violent resistance, cannot be covered by the free and legal exercise of the right of assembly.

As it has already been pointed out, one of the most controversial interpreta- tions made in the Ruling is the one that develops on the part of the seditious act of unlawful assembly that describes a sedition as rising “publicly and tumultuously to prevent, by the force or outside legal channels” the fulfillment of judicial orders and whether or not such formulation implies the need for this uprising to be violent or not. We come, as we have seen, from a jurisprudential interpretation based on non-valid criminal actions, in which sedition was considered a less intense rebellion, and in which the existence of violence comparable to the one required in the crime of rebellion was being demanded.

57 Legal Basis C) Authorship Judgment; Section 1.9.4 (p. 390) 53 The Supreme Court, however, accepts in this Judgement a different interpre- tation and considers that intimidating and injurious attitudes con be enough to be considered enough hostility for a sedition58.

With respect to acts of nonviolent resistance, the Judgment states that “Non- violent resistance is opposition […]. It was not a question, therefore, of expressing disagreement. That is not the case. The aim was to block the objective ordered by the judicial authority”59. “And the fact is that in view of the mass of participants it was inevitable – and more than predictable – that the prospective discipline of nonviolence – which in itself is also resistance, force and de facto coercion – would break, causing sporadic but real

THE RULING OF PROCÉS AND RIGHT TO PROTEST episodes of aggressive conduct that in any event would not be essential to fully meet the behavioral characteristics that make up the definition of the offence of sedition”60.

Non-violent resistance is equated with “opposition, strength, resistance, and de facto path”.

It follows that, in the eyes of the Supreme Court, it is irrelevant whether the exercised resistance is carried out in a non-violent or violent manner, since in either case the Court understands the requirement to rise “publicly and tumultuously to prevent, by force or out of legal channels” as fulfilled. As the Judgement emphasizes, “sedition is nothing more than a collective, tumultu- ous disobedience accompanied by resistance or force”61, to which we see necessary to add: regardless of whether that resistance is non-violent in nature. We don’t agree with this assessment, but it is the way it is seen by the highest Court in the land.

Let us go through the notions pointed out in the Judgment to consider passive resistance as seditious: (1) it is exercised to prevent the compliance with an administrative or judicial resolution, regardless of whether it is carried out in

58 Legal Basis B) Criminal criminality of the facts; Section 4.4 (p. 281) 59 Legal Basis C) Authorship Judgment; Section 1.9.4 (p. 393) 60 Legal Basis C) Authorship Judgment; Section 1.9.4 (p. 389) 61 Legal Basis C) Authorship Judgment; Section 1.9.4 (p. 396) 54 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS a non-violent manner; (2) it “effectively calls into question the functioning of the democratic rule of law”, which, as has been carefully analyzed in this report, is difficult to determine; and (3) it is necessary to deploy in such a way that it is functional for the purpose of discouraging persistence in the application of laws.

In the Sentence itself, it is a matter of differentiating between the type of or- ganized resistance, liable on conviction, and a specific and singular oppo- sition. The border that is drawn between both assumptions does not seem to be any other than the very success of the resistance exercised. That is, if the deployed resistance puts the officer of the law in the position of giving in and desisting from complying with the judicial order, this would be con- sidered the organized resistance that challenges the democratic rule of law.

As repeated previously, it is enough to look back at the last cycles of mo- bilizations that took place in Spain to find innumerable experiences that could fit and perfectly meet the requirements established in the Judgement as a crime of sedition. We are talking about acts of organized non-violent resistance, with the purpose of preventing compliance with judicial deci- sions and not wavering from that attitude despite the requirements that were made of them, reaching their goal on many occasions. Furthermore, as has happened with stopping evictions, these non-violent acts of resistance have not been infrequently carried out in several places simultaneously, trying to prevent several judicial orders in the same day and in different parts of the country.

On the other hand, we cannot fall into the naïveté of affirming that whoever exercises civil disobedience does so with the conviction that he will not be judged and possibly be punished for it, since it would be to deny the very essence of civil disobedience. As much the person exercising civil disobedi- ence maintains that he or she disobeys legitimately, this does not imply that he should not be accused of any crimes. And it is precisely the assumption of this punishment, and the public display of the injustice that occurs when applying it, what partly pursues the disobedient as a spring that allows the debate to be transferred to society forcing citizens to take a position on it. In this sense, the Sentence itself seems to even reproach Jordi Cuixart for not assuming the accusation of sedition that was formulated against

55 him, going so far as to affirm that“the coherent thing for who invokes civil disobedience will be to assume the punishment under the criminal law that he violated, in order to value the intensity of his discrepancy with the legal order”62.

Now, the fact that whoever exercises civil disobedience has to be willing to accept its punishment, cannot mean that he or she also has to assume any type of punishment. One of the pillars of our democratic system of law is the principle of legality, which requires that criminal law clearly define crimes and their penalties, so that it is accessible and predictable for anyone.

THE RULING OF PROCÉS AND RIGHT TO PROTEST Precisely for this reason, our own Constitutional Court has affirmed, for example in its Judgement 146/2017 of December 14th, that it is not con- stitutional to “admit such open formulations due to their breadth, vagueness or indefiniteness, that its effectiveness depends on a practically free and arbitrary decision of the interpreter and judge”. In the same vein, the Eu- ropean Court of Human Rights has defended that the principle of legality cannot be understood as respected if, given the obscure letter of the law a clarification is necessary through judicial interpretation and it’s result is reasonably unpredictable.

Like we’ve stated, Jurisprudence on the crime of sedition is scarce, without there having been any sentences that analyze this crime in depth since its last modification of the year 1995. This allows us to maintain that the Su- preme Court’s Ruling, in its interpretation of the crime of sedition, and spe- cifically of the need or not for violence to comply with the elements of the crime, causes the ruling to be considered unpredictable for the defendants, and, therefore, not respectful of the principle of legality.

In conclusion, the Supreme Court’s Judgment of the Procés, when interpret- ing the crime of sedition in such a way that it accommodates intimidating, injurious or hostile attitudes as the means of committing the offence, ex- pressly including any act of non-violent resistance as a possible seditious act, places us in a legal framework in which civil disobedience actions, with the clarifications made above, could constitute a crime of sedition.

62 Legal Basis C) Authorship Judgment; Section 1.9.4 (p. 396) 56 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS Such an interpretation constitutes a punitive aggravation of this type of behavior, which was previously relegated to other types of crimes (disobe- dience, resistance and, in certain cases, public disorders) or administra- tive offenses (contemplated in the Citizen Security Law, popularly known as the “Gag Law”). We believe that there is a need to debate whether this interpretation, apart from being considered unpredictable, would violate the rights of peaceful assembly and freedom of speech of those who ex- ercise them.

57

4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW

4.1 Comparative study

In view of the content of the crime of sedition in the Spanish Penal Code, according to the interpretation offered by the Supreme Court in the already analyzed Procés Judgement (459/2019), we must examine whether simi- lar crimes exist in other countries around us.

A positive comparative result – the verification that countries of our environ- ment also include a crime of the same characteristics in their penal codes – could a priori be an indicator that this crime generates a consensus at a European level regarding its need, whereas by not finding similar crimes we would have an indicator, among other possible ones, that the Spanish crime of sedition is out of date in regards to current European standards.

With this purpose, we have analyzed the penal codes and Common Law 63of the following 18 member countries of the Council of Europe64: Ger- many, Belgium, Bulgaria, Croatia, Estonia, France, Greece, Hungary, Eng- land and Wales, Italy, Ireland, Malta, the Netherlands , Poland, Portugal, the Czech Republic, Romania and San Marino.

63 Legal system used in England and Wales, the Republic of Ireland and partially in Scotland, where the fundamental basis of the law is the jurisprudence and not the Law dictated by the Parliament. 64 Organization broader than the European Union and within which the European Court of Human Rights is born, the last judicial instance that will review STS 459/2019. 59 For this comparison we have not only looked at crimes that share the same formal name, since the word “sedition” is an extremely broad and diffuse term, given its historical and grammatical meaning, but also we have identi- fied types of crimes that meet all or most of the characteristics of our crime of sedition, according to the interpretation given by the Supreme Court.

According to this Procés Judgement, the crime of sedition as described on article 544 of the Spanish Criminal Code requires the following elements to occur:

a. A public and tumultuous uprising. THE RULING OF PROCÉS AND RIGHT TO PROTEST b. The purpose to hinder or disobey administrative, legal or judicial regu- lations.

c. That it can use both force or other non-violent means.

d. The mass participation of the uprising ends up “defying the democratic rule of law”.

e. Penalties going from 4 to 15 years of imprisonment, depending on the role of the author (mere participant; promoter or leader; promoter or leader from the position of authority).

Following these observations, we have made the following comparative table, attending the letter of the law in each country:

60 Exige comisión Artículo de su Exige violencia en Permite medios no Quién puede País Delito colectiva o Fin Pena Código Penal su comisión violentos en su comisión cometerlo tumulto

4-8 years imprisonment 8-10 years Sensitively affect or call into question the rule if leader/inducer 10-15 years if, SPAIN 544 to 549 Sedition Yes No Yes of law by obstructing or failing to comply with Anyone in addition to leader/inducer, is an administrative, legal or judicial rules State Authority Incitement to dis- Prison no longer than 3 months for 70 No No Yes None in particular, it is enough to disobey Anyone obey the law the inductor

Incitement to sedi- To incite any kind of mutiny or the loss of 78 tion or mutiny within No No Yes loyalty to the Republic among members of the Anyone 9 months to 3 years in prison the Armed Forces Armed Forces

3 or more Publicly inciting in an illegal meeting to violent- MALTA 73 Sedition Yes No Anyone 6-18 months in prision people ly alter any situation established by law

Yes (although until the 2018 legal re- Conspiracy for 2 or more Conspiring to publicly incite the violent alter- 74 form it included both No Anyone 6-18 months in prision sedition people ation of any situation established by law violent methods and "other illegal means")

Induction to Serious Inducing, facilitating or proposing to commit Prison sentence not exceeding 5 131 et seq. Offenses Against No No Yes Anyone crimes or violent acts against public authorities. years or 4th Category fine Public Order THE Attack on the King- a) Surrender the Kingdom to a foreign power; Life imprisonment or up to 30 years 93 No Yes No Anyone NETHERLANDS dom b) Separate a part of the Kingdom in prison, or a fine a) Altering or overthrowing the constitutional Attack on the consti- Life imprisonment or up to 30 years 94 No Yes No order; b) Altering the order of succession to the Anyone tutional order in prison, or a fine throne Endanger the national territory or the institutions 30 years of Prison. Permanent Pris- 412-1 Attack No Yes No Anyone of the Republic on if the attacker is an Authority. Conspiracy for 2 or more Endanger the national territory or the institutions 10 years in prison. 20 years if you 412-2 Yes No Anyone attack people of the Republic are also an Authority No, but the article 15 years in prison. 20 years in FRANCE includes a possibility prison if it involves the supply of that does not require Insurrectional move- Endanger the national territory or the institutions weapons, explosives or the remov- 412-3 Yes Yes violence, among many Anyone ment of the Republic al of weapons from state security others that do: "Oc- forces. Permanent imprisonment if cupying buildings by you are a leader or organizer. deception".

4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW LA SENTENCIA DEL PROCÉS Y EL DERECHO A LA PROTESTA

Exige comisión Artículo de su Exige violencia en Permite medios no Quién puede País Delito colectiva o Fin Pena Código Penal su comisión violentos en su comisión cometerlo tumulto

Prison from 2 to 8 years for the To force the high institutions of the State (Na- participant. Prison from 5 to 15 tional Assembly, President, Government and HUNGARY 256 Riots/Disorders Yes Yes No Anyone years for the organizer. Prison from Curia) to adopt a measure or prevent them 1 to 6 years in case of unsuccessful from executing a legal act. conspiracy. Attack against the Change the Constitution or the form of govern- 337 Constitution or the No No Yes Anyone 4-10 years in prison. ment. SAN MARI- form of government NO Prison from 4 to 10 years in case Raising the inhabitants in arms against the pub- 285 Armed disturbs Yes Yes No Anyone of attempt. Prison from 10 to 20 lic authorities or conspiring to raise them. years if consummated.

655 Seditious meeting Yes No Yes Must represent a danger to public order Anyone Maximum 1 year in prison

ITALY Prison from 3 to 15 years for par- 284 Armed Insurrection Yes Yes No Promoting an armed insurrection Anyone ticipants. Permanent prison for the promoters and leaders.

Encourage the violent overthrow of democratic institutions through any of the following acts: Causing hatred, contempt or disaffection Demands encou- against the Crown, the Government, the Con- N/A Sedition No ragement to cause No stitution, the Parliament or the Administration of Anyone Unavailable. violence Justice; Inciting citizens to illegally alter affairs of State or the Church; Inciting crime or disor- der; raising discontent or promoting feelings of ill will and hostility between social classes.

IRELAND Requires the use of Section 7 of the Obstruct or prevent any agent or power of the Obstruction of the force, violent means Offenses Against No No State (legislative, executive or judicial) from Anyone Prison not exceeding 2 years Government or any form of intim- the State Act carrying out its functions. idation Possession of seditious documents: Fine less than 50 pounds and/or Sections 2, 10 Manufacture, dis- Demands encou- Undermining public order or government cre- imprisonment less than 3 months. and 12 of the tribute or possess No ragement to cause No dibility or suggesting that the government or Anyone Manufacturing or distributing a se- Offenses Against seditious material violence military forces are not legitimate. ditious document: Fine not exceed- the State Act ing 100 pounds and/or Prison not exceeding 6 months. Exige comisión Artículo de su Exige violencia en Permite medios no Quién puede País Delito colectiva o Fin Pena Código Penal su comisión violentos en su comisión cometerlo tumulto

Attack on territorial Yes, either violence Altering the integrity of the Croatian territory or 340 integrity or the con- No or the threat of vio- No Anyone Prison not less than 5 years. its constitutional system. stitutional system lence.

To force the President of the Republic, the President or a member of Parliament, the Prime Yes, either violence Prison from 1 to 8 years. If weap- CROATIA Coercions to high Minister or a member of the Government, the 346 No or the threat of vio- No Anyone ons are used or injuries are caused, state officials. President or a judge of the Constitutional Court lence. prison from 3 to 12 years. to perform their duties or to oblige them to per- form their duties in a particular manner. Raising of persons Release from captivity, attack officials or force 309 deprived of their Yes Yes No Inmates Prison not exceeding 3 years. them to perform or fail to perform their duties. liberty. Public Disorders/ 371 No Yes No Disturbing the public peace Anyone Prison from 3 months to 2 years Riots Yes. In addition, the Acts against the Change the constitutional order or impede the 397.1 No use of weapons must No Anyone 15-25 years in prison ROMANIA constitutional order exercise of power by the State. be mediated Change the constitutional order or impede the Acts against the 397.2 Yes Yes No exercise of power by the State by putting na- Anyone 10-20 years in prison constitutional order tional security at risk. Attempting to separate from the mother country, to hand over the country to a foreign power, to Betrayal of the ho- 308 No No Yes submit all or part of the Portuguese territory to Anyone 10-20 years in prison meland a foreign power or to endanger the indepen- dence of the country.

Yes, requires Destroying, altering or subverting the rule of Incitement to collec- public assembly Prison not exceeding 2 years or a 330.1 Yes No law through collective disobedience of public Anyone tive disobedience or use of public fine not exceeding 240 days order laws. channels

PORTUGAL Destroying, altering or subverting the rule of Incitement to violent Prison not exceeding 2 years or a 330.2 No Yes No law through collective disobedience of public Anyone political struggle fine not exceeding 240 days order laws. To prevent or restrict the exercise of the func- Yes, either violence Depending on the organ or mem- Coercions to the tions of the Government or Minister of the 333 No or the threat of vio- No Anyone ber of the coerced organ, 1 to 8 constitutional organs Republic, Autonomous Regions or their agents lence. years of imprisonment and local Autarchies or their agents. It requires the disruption of the functioning of Disturbance of the Prison from 6 months to 3 years, Yes, it demands disorder, the Government or Minister of the Republic, 334 functioning of consti- Yes No Anyone depending on the organ or mem- tumult or ranting. Autonomous Regions or their agents and local tutional organs ber of the disturbed organ Autarchies or their agents.

4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW LA SENTENCIA DEL PROCÉS Y EL DERECHO A LA PROTESTA

Exige comisión Artículo de su Exige violencia en Permite medios no Quién puede País Delito colectiva o Fin Pena Código Penal su comisión violentos en su comisión cometerlo tumulto

Prison from 8 to 12 years. If the violent acts are carried out by an organized group, cause great dam- Subvert the constitutional system, the integrity age, seriously injure or kill at least Subversion of the 310 No Yes No of the territory or the defensive capacity of the Anyone two persons, or compromise the Republic CZECH RE- Republic. international position of the Czech PUBLIC Republic, the prison shall be from 12 to 20 years or, exceptionally, permanent imprisonment Interfering with a body of the administration, Violence against 323.1 No Yes No court or other public authority in the exercise of Prison from six months to five years Public Authorities its jurisdiction. a) Limit the sovereignty of the State; b) Instigate Art. 3 of theTrea- ENGLAND & war against the Government; and c) Promote Perpetual exile beyond the seas son Felony Act Sedition No Yes No Anyone WALES the invasion of the United Kingdom by foreign (now abolished) 1848 powers. a) Deprive the State of its independence; b) Prison over 10 years, Prison 25 127 Coup d'état Yes Yes No Segregate an area of the State; c) Violently Anyone years, or permanent prison change the constitutional system. Disabling the consti- 128.1 No Yes No Forcibly removing the constitutional body. Anyone Prison over 3 years tutional organs Restricting the consti- Not anyone, just "by Affect the official activities of the constitutional 128.2 No No Anyone Prison from 1 to 10 years tutional body illegal threat" body. POLAND Violencia o amena- zas para influir en Not anyone, just "by Influence the actions of any administrative body 224 No No Anyone Prison not exceeding 3 years los actos de las au- illegal threat" or public official. toridades públicas Violence or threats Not anyone, just "by 232 to influence the acts No No Influence the official activities of the Courts. Anyone Prison from 3 months to 5 years illegal threat" of public authorities Exige comisión Artículo de su Exige violencia en Permite medios no Quién puede País Delito colectiva o Fin Pena Código Penal su comisión violentos en su comisión cometerlo tumulto

Prison from 15 to 20 years. Con- Not necessarily, Yes, it requires ar- spiracy to commit sedition will be but it is difficult ming or instigating 10 to 15 years in prison if any 124 Sedition No Instigating civil war by arming citizens Anyone to imagine it the carrying of we- preparatory act has been set in individually apons motion and 5 to 10 if it has not been done If it is collective, armed and planned, prison from 5 to 10 BELGIUM years. If it is collective, planned and unarmed, prison from 1 to 5 No, both the It does not set a goal. It is enough that the years. If it is collective, armed and individual and Yes, it requires at- attack or resistance with violence or threats is spontaneous, prison from 1 to 5 269 ff Rebellion the collective tack, resistance with No directed against public agents who are com- Anyone years. If it is collective, unarmed commission are violence or threats plying with a law, an administrative order or a and spontaneous, sentence from foreseen judicial order. 3 months to 2 years. The leaders may also be sentenced to one or more disqualifications of rights for a period of 5 to 10 years Violent acts against a) Violate the independence, sovereignty or Prison from 6 to 20 years or Perma- 231 the Republic of No Yes No territorial integrity of Estonia, b) Take power or Anyone nent Prison Estonia change the constitutional order ESTONIA Non-violent acts against the Republic Requires an attack on the independence, sover- 233 No No Yes Foreign citizens only 2-15 years in prison of Estonia committed eignty or territorial integrity of Estonia by foreigners

4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW LA SENTENCIA DEL PROCÉS Y EL DERECHO A LA PROTESTA

Exige comisión Artículo de su Exige violencia en Permite medios no Quién puede País Delito colectiva o Fin Pena Código Penal su comisión violentos en su comisión cometerlo tumulto

To undermine the existence of the Federal Life imprisonment or Prison of 10 Republic of Germany by abolishing its free High treason to the Yes. Force or threat years or more. In extenuating cir- 81 No No sovereignty, placing it under foreign powers or Anyone Federal Republic of force cumstances, Prison from 1 to 10 separating a territory. Modify the constitutional years order. To annex totally or partially the territory of one Prison from 1 to 10 years. In miti- High treason to a Yes. Force or threat 82 No Yes Land to another. To separate a part of the Land. Anyone gated cases, Prison from 6 months Federal State (Land) of force To modify the constitutional order of a Land. to 5 years.

Public exhortation to Exhort in a public meeting or by means of writ- The penalty for such a crime as an 111 No No Yes Anyone commit crimes ings to commit a crime. inducement

Anyone, but just GERMANY Yes, it can be com- being part of a mitted by force, Endangering public peace by being part of a non-peaceful crowd Violation of the pea- 125 Yes threat of force or No crowd or encouraging the crowd to endanger is not a crime. Only Fine or imprisonment up to 3 years ce of the territory incitement to vio- itself. those who partici- lence pate in violence are punishable.

Inciting hatred against an ethnic, national, religious or racial group, or an individual from Sedition / Popular 130.1 No No Yes such a group; attacking the dignity of these Anyone Prison from 3 months to 5 years Agitation groups or individuals through insult, contempt or slander. Distribute or facilitate publications that incite Sedition / Popular Fine or imprisonment not exceeding 130.2 No No Yes hatred or attack the dignity of the groups in the Anyone Agitation 3 years previous article. Yes, either in a Prison 10 to 20 years, Permanent Subvert, undermine or weaken the authority of 95 Treason No violent coup, riot or No Anyone Reviewable Prison or Permanent the State. armed uprising Non-Reviewable Prison

Spread of fascist No, but it demands Spread ideas that predict change in the state ideology or violent that the change incit- Prison not exceeding 3 years or a 108 No N/A and social system established by the Constitu- Anyone change of the consti- ed take place with fine not exceeding 5,000 Levs tion. BULGARIA tutional system violence

Public incitement to the diffusion of No, pero el crimen fascist ideology or Publicly incite change in the state and social 320.2 No incitado sí exige N/A Anyone Prison from 2 to 10 years of violent change system established by the Constitution. violencia of the constitutional system 4.2 Conclusions 4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW

We can draw the following conclusions from the table: a. All of the examined countries have crimes that punish the use of vio- lence or the threat of violence for any of the following purposes:

- Coerce the highest State institutions.

- Limit its sovereignty or public authority.

- Affect the territorial integrity of the State. b. In the following countries, in addition to the need for violence, the crime must also be committed in a massive and tumultuous way65: Malta, France, Hungary, San Marino, Italy, Romania, Portugal and Belgium. c. The countries that punish mass acts without violence are: Spain, Malta, San Marino, Italy, Portugal, Poland and Estonia. But three of them re- quire very specific circumstances to be committed:

- In Malta’s case, peaceful mutiny is punished only within the Armed Forces.

- In Estonia’s case, the authors of the peaceful uprising can only be foreign citizens.

- In Poland’s case, the only non-violent means allowed are “illegal threats”. d. In turn, the countries that do punish mass acts without violence in gen- eral share the following characteristics:

65 The need for a mass uprising or gathering allows it to be differentiated from the coup d'état or spe- cific coercion to the public authorities, which may be the work of a person or a small armed group. 67 - In San Marino, the crime of assault against the Constitution or form of Government has a more reduced purpose than the Spanish crime (“change the constitution or form of Government”) and the penalty is similar to the Spanish one (from 4 to 10 years of imprisonment).

- In Italy, the crime of seditious assembly requires very broad purposes (“representing a danger to public order”), but the penalty is signifi- cantly less than in Spain (maximum 1 year of imprisonment)66.

- In Portugal, there is the crime of disrupting the functioning of constitu- tional bodies, whose purpose – by means of disorders, riots or shout-

THE RULING OF PROCÉS AND RIGHT TO PROTEST ing – is to impede the functioning of public powers, be they state, regional or local, but the prescribed penalty is significantly less than the Spanish (from 6 months to 3 years of imprisonment, depending on who the disturbed institution is).

- Portugal also contemplates the non-violent crime of “treason against the Homeland”, punishable by high prison terms of 10 to 20 years, but the objectives of the perpetrator of the offence are much more limited than in the Spanish sedition: “Try to separate part of the terri- tory from the motherland; surrender the country to a foreign power; subject all or part of the Portuguese territory to a foreign power or jeopardize the country’s independence”.

In short, we can affirm with enough certainty that in the European context, only San Marino has a crime that is close to the Spanish crime of sedition, that is, a crime that provides:

a. Such high penalties.

b. Through massive actions.

c. Without violence.

66 If violence or damage occurs during the seditious meeting, only the authors of the same, not the participants or organizers of the meeting, as in Spain, would be punished. 68 4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW d. Whose objectives are as broad and indeterminate as undermining the rule of law through non-compliance with any administrative orders, le- gal norms or judicial resolutions.

69

5. AIMING TOWARDS A FAIRER LEGAL SYSTEM: CONCLUSIONS AND PROPOSALS

5.1 Conclusions on the interpretation of the crime of sedition in the Procés Judgement

Throughout the previous pages, we have tried, with greater or lesser suc- cess, to outline the crime of sedition and the Sentence of Procés, analyzing how this crime can interact and frustrate the fundamental rights of citizens to gather and express their ideas and convictions in a democratic society.

As already explained, the Procés Judgement considers that there was an up- rising in the fall of 2017 because thousands of people, taking advantage of a numerical superiority, physically prevented judicial mandates from be- ing fulfilled. This physical impediment was non-violent (with specific excep- tions) and materialized via sit-ins and by locking arms in order to impede removals. From the study of this Ruling we have been able to obtain the following conclusions:

As we have seen, the crime of sedition was already included in the 1822 Criminal Code, and was maintained, with different modifications, in all subsequent Criminal Codes. It is clear from its definition that, although it dif- fers from the crime of rebellion in terms of the legal asset it protects (constitu- tional order of the State vs. public order), the need or otherwise for violence as an indispensable requirement for the commission of the crime of sedition,

71 and as a differentiating element or not with respect to the crime of rebellion, does not appear to be something that the definition of the crime clarifies in a clear-cut manner, giving rise to different interpretations.

The definition of the criminal definition of sedition, in the interpretation given by the Supreme Court in the Procés Ruling 459/2019, is neither clear nor precise nor foreseeable, thus violating the principles of legality and crimi- nality and causing legal uncertainty.

The definition of sedition in the Criminal Code, as interpreted by the Su- preme Court in Ruling 459/2019, clashes with the constitutional right to

THE RULING OF PROCÉS AND RIGHT TO PROTEST assembly and demonstration, since it allows for the criminal punishment of peaceful, public, and mass actions.

The imposition of heavy prison sentences for organizing and leading mass demonstrations whose direct or indirect purpose is to violate a law or an administrative or judicial order has a dissuasive effect on citizens who dare to exercise the constitutional right of assembly. This dissuasive effect (“Chill- ing effect”) is prohibited by the European Court of Human Rights.

Any violation of the right to assembly and demonstration is in turn a restric- tion on the right to freedom of expression. Thusly, the crime of sedition, in the interpretation given by the Supreme Court in Ruling 459/2019, can also unduly restrict freedom of expression.

On the other hand, the interpretation given of the crime of sedition by the Supreme Court entails placing nonviolent civil disobedience, provided that it is massive, within the scope of that crime, without the explicit renunciation of any use of violence as a means making any difference in considering that the requirements of the crime of sedition have been met. In this way, a form of peaceful protest that is deeply rooted in our history and culture, and which in previous years was understood to be protected by the right to protest, is being criminalized. Any civil disobedience could be seditious, as long as it meets criteria which, as we have seen, are not clear and distinct, and which imply a great margin of discretion, such as mass uprising, which is generalized and strategically planned, or questioning the rule of law.

72 5. AIMING TOWARDS A FAIRER LEGAL SYSTEM: CONCLUSIONS AND PROPOSALS Finally, the lack of relevance of the presence or absence of violence in the disobedience exercised in order to understand whether the requirements of the crime of sedition have been met places very different behaviors and approaches on the same level: peaceful and violent acts of disobedience can be considered seditious acts. Anyone who violently disobeys a law or an authority also disputes the State’s monopoly on the legitimate use of violence, undoubtedly calling into question the rule of law and placing the conflict on the plane of force, in such a way that the disobedient will suc- ceed to the extent that he manages to impose himself by means of force. However, anyone who disobeys in a non-violent manner publicly and ex- pressly renounces discussing the exercise of the legitimate use of violence by the State, which can easily bend the disobedient with its use, and fur- thermore does so by announcing the assumption of the punishment that the exercise of such disobedience may entail, as an explicit form of recognition of the rule of law.

In a way, the interpretation given expels non-violent disobedience from legitimate and protected forms of protest, which could collide with the in- terpretation given to the right of assembly by, among others, the European Court of Human Rights.

We consider that a democratic State and rule of law cannot classify these acts as a tumultuous uprising, nor criminalize actions of this type with such a serious criminal act as sedition. As the magistrate and member of Judges for Democracy, Joaquim Bosch Grau says, “a punishment of sedition for the peaceful protest would collide with a criminal law of constitutional and democratic basis, so it should be reserved for the cases provided in article 21.2 of the Constitution of danger to people or property”67.

With regard to the crime of sedition in European comparative criminal law there is no uniformity at the European criminal level on the meaning and scope of the crime of sedition. As it is a very old crime that initially pursued massive uprisings against authority, its evolution in the different countries has taken different paths: eliminating it and leaving only as a crime previous actions of incitement to an uprising (like England and Wales); assimilating

67 “Sedition: Were the seated protesters rising up?” (eldiario.es). 73 it to the armed uprising or to the violent attack to the heart of the institutions (like France); or eliminating the mention to the political ends (like Spain)

All the European countries examined in this study criminalize the use of violence to coerce State institutions or to affect the integrity of the territory. Also, all countries punish violent acts that occur on the occasion of demon- strations, but punish the perpetrators of the disturbances themselves and not the organizers or other participants.

Only some countries also punish participants in violent insurrections even if they have not exercised violence (since violent acts are always punishable

THE RULING OF PROCÉS AND RIGHT TO PROTEST individually).

The few countries that punish massive acts of disobedience without violence do so under very specific assumptions (Malta, Estonia), establish much low- er penalties (Italy, Portugal), or require very specific political goals that the Spanish penal system no longer contemplates (Portugal, San Marino).

Of the 17 countries examined, only San Marino has a crime similar to the Spanish one, although even the latter requires a specific political motivation (“changing the Constitution or the form of government”) .

We can thus assert that the crime of sedition set forth in Article 544 of the Spanish Criminal Code has no counterpart in the European context, nor is there a consensus at the European level on the need for its existence or the need to establish such high penalties for its commission.

74 BIBLIOGRAPHY

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Special thanks to

Ann Marie Spiteri, Gwen Jansen, Dominique Tricaud, Nora Novoszádek, Achille Campagna, Kaloyan Krastevich, Nicola Canestrini, Dara Robin- son, Lidija Horvat, Ionut Macain, Vania Costa Ramos, Ondrej Mùka, Alex Tinsley, Agata Stajer, Manon Libert, Jaanus Tehver, Silke Studzinsky, E.F.T; Joan Anglada Rull, Josep María Anglada Rull Marta Autet i Ricart, Lidia Posada García, Naomi Abad Velasco, Marta Herrero de Pablo, Silvia Bel- trán Granell, Irina Pertierra Sánchez, Patricia Orejudo Prieto de los Mozos, Eduardo Gómez Cuadrado, Juan Rubiño Mira, Fair Trials, Iridia.

And a very special thanks to those who have guided us throughout our professional carreers: Jaime Sanz de Bremond, José Luis Galán and Endika Zulueta. None of this would have been possible without them

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