After spending all day listening to all the Spanish parliamentary parties trying to give ad hoc explanations on the modification of the definition of the Penal Code offence of misuse of funds, which is being debated in the Congress of Deputies, and then the amendment finally agreed by ERC (Catalan Republican Left) which had the seal of the PSOE (Spanish Socialists), it is really very difficult to think that the Catalan independence referendum of October 1st 2017 will not be considered a crime under the new Penal Code, currently in the middle of its parliamentary passage. As is normal, each party explains things in the way that best suits it, and you have to take everything they say with a grain of salt. No one's going to foul their own nest. To try and resolve the doubts, I've spoken with three criminal law experts, very familiar with this type of problem, and have not found a consensus among them either: two believe that the Catalan political prisoners would be found guilty under the new law, albeit with a sentence reduced by at least two years, given that the maximum prison sentence would go from six to four years, and one, more benevolently, believes that it is not the same, although with nuances as to what the Supreme Court's real objective was.
Once again, therefore, we are in the hands of judicial interpretations, having not achieved the goal of completely decriminalizing the 1st October, as ERC had proposed, by creating a new crime in which the punishment was affected by the fact that there was no personal enrichment involved. The PSOE did not give way and wanted to assert that the 2017 referendum was still a crime and that the judges had to have legal means to punish politicians who tried it again. Pedro Sánchez is thus trying to arm himself against the insistent political and media campaign of the right after opening the "can of worms" of sedition, a law which he ended up rescinding; modifying the current text of the crime of aggravated public disorder, which still makes serious incursions into basic freedoms connected with the right to protest; and that of misuse of funds, which has today been put on its course.
At the end of it all, there is an uncomfortable question that everyone must answer: are the improvements that may have found their way into the amended Penal Code enough to justify accepting that the 1st October referendum committed a crime even if the punishment would now be lower? From the very first, I have stated that there was no reason for the prison sentence, but simply the vindictive desire of the Spanish state to tame the independence movement. From there, a legal schema was constructed so that they would all go to prison and receive an exemplary sentence. The body of the state thus had the sentence it wanted and, from there, the legislation was presented in a convoluted way so that it had the appearance of a well-argued sentence. The trial was, in many of its moments, a kind of farce, something on which many international bodies have subsequently commented.
In other words, in the end, I am very much afraid that the judges, whether they are left with one version of the Penal Code or another, will, in this type of issue where the unity of the State is at risk, end up doing what they want and be widely applauded for it. But it will be interesting, once the Penal Code is amended and the fine print published in the Official State Gazette (BOE) to see what happens when the political prisoners present a request for a review of their sentences to the Supreme Court. Something that they will naturally do if the modification also seeks to reduce the exaggerated sentences of all those convicted over the 1st October vote. One of the three legal professionals I was talking about at the beginning, the one who believes the Supreme Court will have a harder time condemning another referendum attempt like the one in 2017, did, however, give me a perplexing answer to the question of what would happen when the chamber led by judge Manuel Marchena had to review its sentence: "Well, I don't know how it will be done, but the sentences will be more or less the same. I have no doubt."
Well, maybe we've made a long trip in a circle to end up getting nowhere.