Would 2017 independence vote be a crime under revamped criminal code?

Parties involved in deals to reform sedition and misuse of funds disagree on interpretation

The ballot box of the Catalan independence referendum in a polling station on October 1, 2017
The ballot box of the Catalan independence referendum in a polling station on October 1, 2017 / ACN
Guifré Jordan

Guifré Jordan | @enGuifre | Barcelona

December 13, 2022 08:09 PM

December 13, 2022 08:47 PM

The Spanish penal code reform is ready to pass in Congress this Thursday after the parliamentary justice committee approved on Tuesday the amendments agreed by the governing Catalan and Spanish parties the evening before

The revamped text will then go to the Senate, where it is expected to also pass, thus coming into effect in the coming weeks or months.

The reform was first announced by Spain's prime minister, Pedro Sánchez, on November 10, who explained that he made the decision in an attempt to ease relations with Catalonia after the peak of the independence push in 2017.

This also follows a meeting in summer between the Catalan and Spanish governments, where an agreement was reached to "dejudicialize" politics

The events five years ago ended in nine of the referendum and declaration of independence organizers sentenced to between 9 and 13 years behind bars for sedition and, some of them, misuse of public funds, of which they served roughly three and a half before being pardoned. Meanwhile, several other officials exiled to avoid trial and have open extradition processes for the same crimes: sedition and misuse of funds.

When the reform is passed, judges will have to review their sentences on the pardoned leaders and the European arrest warrants – but those lawmakers who agreed on the text do not find consensus in the interpretation.

Esquerra believes 2017 referendum now deserves no prison

Esquerra, the party that rules over Catalonia, believes that the new regulation de facto decriminalizes the 2017 events.

For them, with the new version, the crime of misuse of funds can no longer be linked to events like the 2017 referendum logistics and organization, "and let alone with sentences involving prison."

"No damage or serious obstruction to public service was made," sources of the party said.

The changes to the Spanish penal code "reduce the repressive capacity of Spain," says spokesperson Patrícia Plaja / Catalan News

One change will be that applied to article 433 of the penal code which establishes that, when there is no personal or third-party enrichment, officials who divert resources to a use other than what they were intended will be sentenced to prison terms of one 1 to 4 years, and disqualification of 2 to 6 years, as long as there is "serious damage or obstruction of service." In the current criminal code, this conduct may lead to between 2 and 12 years behind bars.

However, if the facts do not include "serious damage or obstruction of service," then the penalty will only be disqualification of 1 to 3 years and a fine.

The Catalan government spokesperson, Patrícia Plaja, expressed similar views after the weekly cabinet meeting on Tuesday.

"We are satisfied with these changes [to the criminal code], they reduce the repressive capacity of Spain. No crime was committed on the day of the independence vote."

Spanish government: no 2017 events are decriminalized

Yet, the Socialist party, leading the coalition executive in Madrid, sees the same text differently.

For Spain's presidency minister, Félix Bolaños, "there are no events committed in 2017 that are now decriminalized."

"All of them are now punished with new crimes such as the aggravated public disorders and the irregular budgetary diversion one."

He also said that "it is up to the Supreme Court to review or decide whether sentences have to be reviewed."

Magistrates will certainly have to modify the sentences at least to adapt them to the fact that the crime of sedition will not exist anymore if the amendments pass – instead, they will have to consider whether the events fall into the new aggravated public disorders one.

Also, Bolaños made clear that the Spanish government will not accept an independence referendum after Esquerra's fresh plans to open a negotiation for a Scotland-like vote.

Filling the Sink podcast

Have a listen to the recent Filling the Sink podcast tackling the reform of the penal code and its potential impact, published before the deal on tweaking the crime of misuse of public funds.