"The law is the channel along which flows the river of facts."
Émile Boutroux
The deputy leader of an EU country has just said in front of microphones and cameras that her government will reform the criminal code to facilitate the handover of Carles Puigdemont to Spanish justice. Something that happens when you are not a lawyer and you read the morning instructions of advisors without internet. It's outrageous. It's a phrase that seems to have been dictated by the defence of the former Catalan president himself. She has awarded him a free kick. She has served it to him on a platter. The deputy PM of a government affirming, without her legs even trembling, that in her country the criminal laws are being changed to prosecute a specific person! Note this well, not to save specific people, but to prosecute them. Very harsh.
I'm not surprised that Puigdemont has said that he's not interested in sedition reform because what he will be interested in is the result of this crazy game of trying to convince some - those of ERC - and others - those of the patriotic front - that the Spanish government's action benefits their interests. This is what Nadia Calviño was trying to do with her insane statement. A sentence that, undoubtedly, will end up in the hands of the European courts.
Imagine you are a placid Belgian judge, with ceremonial neck-band and terrible weather; or a Central European judge or one based in cold Strasbourg, who has on the table the following legal gibberish: a single set of facts, unchanged in their history, which in 2017 were prosecuted as a crime against the Spanish constitutional order (the offence of rebellion); but that the following year, in 2018, were transformed into an ambiguous charge of either a crime against the Spanish constitutional order (rebellion) or against public order (sedition) and that between July of that year and October of the following ended up producing convictions for a crime against public order, although then, in 2021 a pardon occurred, alleging at length the public utility of this decision. The spectacle is now joined by a government that is saying that it will legislate to hand over specific people, for these unique and immutable facts. This has been the process followed by the European Arrest Warrants issued by Spain. The facts, the unique and immutable facts, have seen the turning of a wheel of Spanish crimes that are changeable, alterable, modifiable and permutable.
The problem is not the definition of crimes or the wording, but the fact of having carried through a judicial fiction to reach a sentence and then having imprisoned politicians in a democratic country for that very reason
The real question is not whether one type of crime or another needs to be reformed in this way or that, the reality is that the facts that we saw before our eyes in Catalonia in 2017 did not fit with any item in the Penal Code and that the coercion which was the formulation of chief public prosecutor Maza, applauded by the right and promoted by the PP in the Spanish government, only leads into a labyrinth in which, as we can see, each step taken to find the exit only tangles Ariadne's thread more and more, until Theseus ends up getting strangled by it.
The basic problem we face is one of the facts. The events that occurred that did not fit into the definitions of criminal offences. The facts that we were able to perceive with our senses. And gosh, how we perceived them! Never in my life have I spent so many hours at a time in a TV studio giving live coverage as in those days. The problem, I insist, is that after the application of Article 155, some believed that, furthermore, it was a good idea to punish, and punish criminally, something that had happened in the offices but that was not defined criminally - that is to say, it was not a crime - and this forced them to punish what happened in the street. What Europe has said so far is that, in terms of what happened on the street, a democratic environment does not impose such high penalties.
The problem is not the definition of crimes or the wording, but the actual fact of having carried through a judicial fiction to reach a sentence and then having imprisoned politicians in a democratic country for that very reason. Fixing that up is not easy and there are many doubts that this reform will really deliver something more than personal solutions and a great political chill that gives ammunition to the most rancid right.
The reform of the defined crime of sedition - which had been called for on multiple occasions by legal technicians and specialists, based on theoretical postulates - has in this case, according to my sources, had a genesis far removed from the usual academic and technical-legal circles and has been closer to Catalan lawyers who have worked very closely with the teams from a certain palace on the highway to La Coruña. Maybe that's why, as some whisper to me, this could quite perfectly be called "the Rovira reform", because she is, by far, the person who benefits the most. However, the benefit that ex-president Puigdemont receives is also not a small thing, not because of the reform of the crime but because of what I explained to you before: how will the Kingdom of Spain justify in the European courts that this is not an a la carte criminal persecution against specific politicians? After Llarena's blunders, Calviño arrives to finish the job, just in case there was any doubt: "Your lordships, we are doing it so that you can deliver that gentleman to us!"
Politicians are not satisfied with obtaining what they see as sufficient by making deals, but rather, in these times we live in, they have to sell the deals without being sold themselves. Thus the right honourable president Aragonès has already packaged the reform as his own and has made a bid for the crime of misuse of funds and the Spanish government is trying to suffer the least possible damage, adding its nuances and making gestures, sometimes with as much ignorance as that exhibited by Nadia. The "misuse of funds" gambit will not go well. We are waiting to read the text of the amendment by the Catalan Republican Left, but the PSOE and its partners who supported the sedition reform - Compromís, the Comuns, the Basques - will have a very difficult time altering the definition of a crime that would open the doors to corruption and could even benefit corrupt people who are already convicted, through a review of their sentences. No one on the left will buy this and rightly so. The current Spanish parliamentary majority was forged, precisely, over the motion of no-confidence against the corrupt People's Party. To see a judge like her lordship Margarita Robles - who was never a penal expert - trying to make it all fit, whether morally or not I don't know, that there are some who steal and others who don't steal for themselves, won't cut much ice with her own followers.
The law is only the channel, the facts are the river that runs along it. There are some who want to jump this river, but they are not taking into account the force of the waters, which are the facts. It is the facts that are immovable. Ask the judge with the neck-band how, in the end, he will have to respond.