On the Crimes of Rebellion and Sedition. ENRIQUE GIMBERNAT

On the crimes of rebellion and sedition. ENRIQUE GIMBERNAT https://www.elmundo.es/opinion/2018/11/29/5bfe9f09fdddff95068b4579.html

29 Nov. 2018 | 02:07

If my numbers are right, from January 2013 to October 2017, the Catalan Parliament approved four laws and six resolutions, and the Parliamentary Bureau admitted 10 bills and draft resolutions for approval by the regional legislature, that were overtly unconstitutional, and contrary to previous Constitutional Court rulings; the purpose of all of this legislation was to facilitate and carry out the independence referendums of 9 November 2014 (that of the “cardboard ballot boxes”) and 1 October 2017. Meanwhile, for the same reasons and in the same period, the cabinet of the regional government approved four equally unconstitutional decrees.

Each and every one of these legislative and executive provisions and resolutions issued by the Autonomous Community of Catalonia were first suspended—assuming that my numbers are indeed right—by nine Constitutional Court decisions, several of which were served personally to the members of the Parliamentary Bureau, to the General Secretary of the Parliament, and to the regional president and cabinet members, advising them that they could be found criminally liable if they did not obey the suspensions. The very same laws and resolutions were subsequently found to be unconstitutional and null by numerous Constitutional Court rulings and proceedings.

One must admit that the Catalan Parliament and Cabinet did not burden the Constitutional Court with problems of interpretation to find these regional laws and resolutions to be unconstitutional; each of these instruments—with unparalleled audacity—unilaterally establish provisions such as the “process of democratic separation [of Catalonia not being subject to] the decisions of institutions of the Spanish State, and particularly of the Constitutional Court” (Resolution 1/XI, of 2 November 2015, of the Catalan Parliament), not to mention repealing the Spanish Constitution (Articles 3 and 13 of Act 20/2017, on legal transition and the founding of the Republic). One need not have the legal acumen of Ulpian to understand that all of these preposterous and arrogant provisions approved by the regional parliament and cabinet are unconstitutional. In fact, knowing how to read and write is enough.

Similarly, as regards the equally preposterous appeal to Catalonia's non‐existent right to decide, not one secessionist jurist has yet identified a provision of national or international objective law that recognizes this supposed right. Naturally, it cannot be found in domestic provisions, because not only does national law not recognize this right, it actually emphatically denies its existence in Article 2 of the Spanish Constitution, which states that “The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards”. Nor, of course, can such a right be found in international law, since Resolution 1514 of the United Nations General Assembly (the Magna Carta for Decolonization) recognizes the right to self‐determination only for former colonies, and expressly rules out regions such as Catalonia availing themselves of said right: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations” (Principle 6 of Resolution 1514). Furthermore, in this same regard, when referring to the right to self‐ determination, United Nations General Assembly Resolution 2625 also expressly precludes this right from being “[…] construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States” and stipulates that such States are “thus possessed of a government

1 representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Since, consequently, there is no court in the world, be it national or international, that has the power to recognize the region's right to decide—a right that not only does not exist but is expressly prohibited by national and international law—Catalonia's independence can only be achieved in one of two ways: either by reaching an agreement with the central government, or with tanks.

The first of these means was employed by Scotland to hold—in agreement with the government of the United Kingdom—a binding referendum on independence, which ultimately delivered a negative result for the secessionists. However, a pact between a region and the executive—which is permitted by British law—is impossible in Spain. Unlike UK law, Spanish law does not give the national government the power to agree on such a referendum, since prior to doing so the aforementioned Article 2 of the Spanish Constitution would have to be repealed. Although such an action is theoretically possible, in practice it is not, as the requirements for the constitutional reform that would enable the separation of Catalonia would include (pursuant to Article 168 of the Constitution) approval by two‐thirds majorities in the Congress and Senate, followed by a national referendum on the amendment; because, at the very least, the “constitutionalist” parties would oppose such a reform, the required two‐ thirds majorities would never be obtained. Even in the unimaginable hypothetical case of such majorities existing, it seems similarly inconceivable that the people of Spain, in the subsequent referendum, would vote in favour of a constitutional reform that would allow Catalonia's independence.

Having ruled out Catalonia's possibility of achieving independence through agreement with the Government, the second, and only remaining possibility would be to use tanks. There is a recent example of this method in Europe: Crimea, whose parliament approved a unilateral declaration of independence from Ukraine on 11 May 2014, and which subsequently joined the Russian Federation after a referendum held on 16 May. This was possible because throughout the process of secession and the subsequent incorporation of Crimea into Russia, the Russian armed forces supported the separatist movement through considerable military land, sea and air operations. Because Catalonia does not have armed forces or a friendly country that would lend it troops, this means of achieving independence is also ruled out for the Autonomous Community.

Since no court in the world can recognize an inexistent and explicitly prohibited right to decide for Catalonia, since no agreement to enable independence can be reached between the central government and the Catalan government without the prior—almost impossible— repeal of Article 2 of the Spanish Constitution, and since Catalonia has no tanks and no nation in the world would be prepared to lend them, independence can only be considered unattainable, unless one has lost a grip on reality. The fact that the secessionist politicians have mobilized millions of Catalans to pursue an impossible independence is unforgivably irresponsible, and one day—be it sooner or later—they will answer to the true people of Catalonia, who have been terribly deceived.

As mentioned on several occasions, in Europe, secessionist movements are characterized by a consistent pursuit of separation of regions that are richer than the rest of the State. This is the case for the secessionist parties of Flanders (Vlaams Belang, Nieuw‐Vlaamse Alliantie [N‐VA]), which enjoys a per capita income that far exceeds the rest of Belgium (Wallonia), or for the Northern League (LN), which is pursuing secession from the other, less privileged regions of Italy. In other words, what characterizes these secessionist movements, apart from

2 nationalism, right‐wing extremism and xenophobia, is a lack of solidarity, as also reflected by the fact that no secessionist movement has been seen in the poorest regions of Europe. As is well known, it is these far‐right parties of Europe (Vlaams Belang, N‐VA and LN) who offer the strongest support and comradeship to the Catalan secessionists. However, to confirm whether the Catalan secessionist movement is also characterized by xenophobia, there is no need to look at their friends in Europe ("birds of a feather…"), one need only repeat some of the xenophobic utterances of the person who has been raised to the highest echelon of power in Catalonia by the secessionist parties PDeCAT, ERC and CUP, namely Quim Torra: “Now you look at your country and once again talk to the beasts. But they are different. Carrion‐eaters, serpents, vultures. Beasts in human form, but which exude hate… There is something Freudian in these animals. A small fault in their DNA ¡Poor wretches!”; Or: “Spain is fundamentally an exporter of misery, in material and spiritual terms”.

And the progressive sectors of Spanish politics, which approve of Catalan secessionism, will someday have to explain why they supported a movement that rejects two of the hallmarks of left‐wing identity: internationalism and solidarity.

As I explained in detail in two articles previously published in El Mundo (on 12 December 2017 and 31 July 2018), as I reiterate here, and as can be deducted from numerous Supreme Court and National High Court rulings, as well as from reports issued by the State Prosecution Service—although in fact there is no need to refer to any of these, if one has followed the Catalan crisis in the news: the events in Catalonia are the result of a scheme dreamt up by the regional cabinet, the Speaker of the regional parliament, Carme Forcadell, and some other members of the Parliamentary Bureau, all acting in collaboration with the annexed organizations Assemblea Nacional Catalana (ANC), Òmnium Cultural and Associació de Municipis per la Independència (AMI), and with the commanding officers of the regional police force, who supported and enabled the illegal referendum of 1 October 2017, and misappropriated public funds. On the day of the referendum, although they were implementing court orders, the officers of the Civil Guard and the National Police were violently driven back (and injured in 58 cases) by human walls that had been formed at the command of the civil wings of the regional executive—ANC and Òmnium Cultura—which first attempted to prevent the law enforcement personnel—sometimes successfully—from confiscating the ballot boxes and voting slips in the polling stations. Later, the same officers faced new human walls that tried to prevent them from removing the boxes and slips from the polling stations. These violent clashes between demonstrators and members of Spain’s national Security Forces were decisively exacerbated by the regional police force, as can be surmised from the provisional findings submitted by the State Prosecution Service to the National High Court on 7 November 2018. As stated in the findings, the regional police were acting under orders from their commanding officers, including the Catalan Conseller of the Interior Forn—charged with the crime of rebellion by the Supreme Court— ("The mossos [regional police] will uphold the law and allow the 1 October referendum to take place”) and from the highest ranking officer of the regional police force, Josep Lluís Trapero. In fact, an order was issued on 27 July 2017 by the examining judge of the Catalan High Court of Justice, instructing the Security Forces to “close premises being used to prepare the referendum or to be used as polling stations on 1 October”, and to “confiscate all material relating to the referendum”. To execute this order, the different police forces agreed at coordination meetings that the regional police force would be the first to intervene at the polling stations, and that the Civil Guard and National Police would only act at the request of the regional police should said intervention prove insufficient. However, following orders from their commanding officers, the regional police— breaking their agreement to be the first to intervene—did nothing to close premises, or to prevent voters from entering them, or to confiscate ballot boxes and voting slips, so that when

3 they called in the National Police and the Civil Guard, the premises were so crowded that voters were able to form human walls. These officers, implementing court orders, attempted to contain the unlawful and violent resistance with which the national Security Forces were met by the members of ANC and Òmnium and by other individuals who had been seduced by said organizations. The violent uprising by those who resisted the national Security Forces is not negated by the possible and occasional excesses that may have been committed by certain officers. This potential wrongdoing is being investigated by a number of Catalan courts, but to date there has been not one single guilty verdict; on the contrary, there have been seven dismissals and one acquittal, as the defendants were understood to have taken “necessary and proportionate action” to carry out the judicial orders.

In my article published in this newspaper on 12 December 2017, I maintained that what happened in Catalonia on 1 October 2017 constituted a crime of sedition, and not one of rebellion as defined in Article 472.5 of Spain’s Criminal Code (“A conviction for the offence of rebellion shall be handed down to those who violently and publicly rise up for any of the following purposes: [...] 5. To declare the independence of any part of the national territory”). My reasoning was as follows: “From a first reading of Article 472.5 it would appear that the events summarized above did indeed constitute a crime of rebellion, in so far as a violent and public uprising did take place, and in so far as the independence of Catalonia was declared. But this first interpretation does not stand, because these violent and multitudinous acts were only aimed at enabling the illegal referendum of 1 October 2017, in order for voters to answer the question: “Do you want Catalonia to become an independent State in the form of a republic?” But this referendum still did not result in a declaration of independence, and therefore it is not possible to link the declaration of independence to the aforementioned violent and public acts carried out prior to and on 1 October 2017. Although independence has been declared, this act arose from an unconstitutional vote in the Catalan Parliament on 27 October, and neither required nor provoked any kind of violent demonstration, as its approval only necessitated the simple and—in itself—peaceful act of dropping a voting slip into a box provided for that purpose”.

I can no longer maintain the stance that what we have witnessed is a crime of sedition and not of rebellion. Under Article 472.5, it is not the declaration of independence through a violent and public uprising that is defined as constituting rebellion; rather, it is sufficient that the “purpose” of such an uprising be to declare independence, which is precisely the case of 1 October 2017: the “purpose” of the violent acts perpetrated that day in Catalonia was not in reality that of voting affirmatively in the referendum for the sake of the referendum itself, but of “declaring” independence. For such a declaration to be made, it was essential for the secessionist option to triumph in the polls, since Article 4.2 of the unconstitutional Catalan Referendum Act stated that “the Catalan Parliament, within the two days following the Electoral Commission’s announcement of the official results, [would] formally declare the independence of Catalonia”.

I therefore abandon the position I defended in my article of 12 December 2017; I now concur with the order handed down on 21 March 2018 by the judge Pablo Llarena which charges the secessionist politicians named therein with the crime of rebellion. I also now concur with the provisional findings submitted by the State Prosecution Service to the Supreme Court and the National High Court on 2 November 2018, asserting that the actions attributed to the commanding officers of the Catalan regional police force (Puig, Soler, Trapero and Laplana) constitute crimes of rebellion pursuant to Articles 472.5, 472.7 and 473.1 of Spain’s Criminal Code.

Recently, and as a result of the provisional findings of the State Prosecution Service submitted to the Supreme Court and to the National High Court, a Manifesto (Trivialization of the crimes of rebellion and sedition) was made available for signing. It has primarily been signed by Catalan jurists, including the lawyer Francesc Homs, a former spokesperson of the regional cabinet who was found guilty of the crime of disobedience by the Supreme Court in relation to the referendum of 9 November 2014. The Manifesto denies that any crime of rebellion was committed during the events of 1 October 2017 in Catalonia on the basis of an unconvincing argument, appealing to Constitutional Court Ruling 198/1987 (sic: in fact it is ruling 199/1987, of 16 December), according to which “the crime of rebellion is, by definition, committed by a group which intends to use firearms or explosives". But the content of Constitutional Court Ruling 199/1987 is no longer legally valid, because it was handed down on the basis of a regulation of the crime of rebellion which is no longer in force in the current Criminal Code. Under the prevailing Criminal Code it cannot be argued that the crime of rebellion is only committed when perpetrators “intend to use firearms or explosives”; this is because Article 473.1 of the Criminal Code defines a form of aggravated rebellion involving “the use of weapons”. It therefore logically follows, that the other forms of rebellion are characterized, to the contrary, by the non‐use of weapons.

Furthermore, the Manifesto also denies any crime of sedition “because at no time has any evidence been provided that the individuals charged induced, provoked or led an unruly uprising for the purpose of preventing the law from being enforced”. In response to this I must argue that there is actually an abundance of evidence that the violent and public uprisings of 1 October 2017 were made possible by the defendants organizing and financing the referendum, as I have attempted to demonstrate here and in two previous articles in El Mundo on 12 December 2017 and 31 July 2018. The defendants did so in full knowledge that—with the mutually agreed intervention of ANC and Òmnium, and the essential collaboration of the regional police—there would inevitably be violent clashes between the crowds led by these organizations and the Security Forces who had been designated to carry out the court orders. Moreover, the violence provoked by the secessionist plot does not fall under the definition of sedition set forth in Article 544 because it was not carried out solely to “impede [...] court decisions”, but under that of rebellion—which encompasses that of sedition—because, as I have stated previously, the “goal” it pursued was that of “declaring the independence” of Catalonia.

One of the purposes of criminal law is that of general deterrence, i.e. by applying the penalty provided by law for a given crime, the aim is to deter the greatest possible number of citizens from committing said crime, for fear of enduring the same sentence that will be served—or is already being served—by those who dare violate the Criminal Code. When appeals are made to end the provisional detention of the Catalan politicians who have been charged with the crime of rebellion, or for them to be pardoned in the event that they are found guilty, the general deterrence function of criminal law is thereby relinquished. Because if those charged with rebellion are not even to be held in detention until the trial is held and if, should they be found guilty, they are released under the corresponding pardons, this will send the message that acts of rebellion can be committed with impunity and in Catalonia, in the future, we will have a coup d'état every year, without fail. Indeed, the fact that the secessionist politicians are being held in detention and are facing very serious sentences, and that others have fled to evade their responsibilities, means that the law’s general deterrence effects are already in play. Despite their incendiary speeches, the current Catalan leaders—from Torra to Torrent— are only being more than careful not to take action, for fear of the consequences under criminal law, such as those being endured by or facing those of their fellow party members who stand accused.

Application of Article 155 of the Spanish Constitution should have put an end to the serpent’s egg of Catalan secessionism before it hatched. But, despite the deluge of unconstitutional legislation passed from January 2013 to September 2017, the Partido Popular Government held back from applying it, which would have avoided greater evils. And the supposed explanation that it was not applied because the constitutionalist parties PSOE and Ciudadanos did not support its application, does not serve as an excuse for the then Government, but only means that this reproach should also be extended to those two parties.

Only three institutions have acted appropriately during the Catalan crisis: the Criminal Law Chamber of the Supreme Court, the General Attorney’s Office and... (for someone like me, a Republican to the core, if someone had told me 30 or 40 or even just two years ago that I was going to write what I am about to write, I would not have believed it) the current Monarchy.

Enrique Gimbernat is a professor in criminal law at the Complutense University of Madrid and a member of the editorial board of the newspaper El Mundo. His latest books are “El comportamiento alternativo conforme a Derecho” (BdF, 2017) and “El Derecho penal en el mundo” (Aranzadi 2018); the former also contains a self‐penned author profile and the latter includes many articles published in this newspaper over the past few years.