Sedition has been, since the 1995 Penal Code came into effect, the most serious crime against public order. Luckily, it stopped being a crime against the state and became devoid of any connotation related to the old military jurisdiction. The maximum sentence for organisers, if they hold positions of authority, is 15 years in prison and a ban from public office of the same length; if not in authority, up to 10 years for both.
The crime of sedition requires a public and tumultuous uprising, with some specific aim, to summarise, to prevent the application of the law. A third element is necessary: that these actions are carried out via force or outside of legal means. If the three elements aren't met simultaneously: action, means and aim, sedition hasn't taken place.
Despite the not small number of troubled situations seen in Spain and in Catalonia from 1995 to now, a quick glance at the legal system's databases will show that the Supreme Court hasn't made any pronouncements on the subject. That means we have no kind of legal experience of the new rules of the crime of sedition, although we do know, those of us who work in criminal law, how this crime can end up being committed. In this context, it's noteworthy that the only sentence the public prosecutor cites in support of its complaint (in fact, a mere description of the elements of the crime), is a sentence from 1980, in other words, when the Franco laws on sedition were still in force.
So, the public prosecutor yesterday, Friday, presented an extremely peculiar complaint of alleged sedition for the events of the 20th to the National Audience court, more than debatably the competent body to judge this crime. First peculiarity: the complaint isn't against anyone.
The events, however, as everyone will remember, consisted of legitimate demonstrations in support of the people and institutions that were subject to arrests and searches on the occasion of legal proceedings from Barcelona's Court of Instruction number 13, proceedings still kept secret and to which nobody, beyond the judge and the prosecutor, legally has access. There is no lawsuit nor police report on the matter.
The public prosecutor shouldn't present complaints, but lawsuits, because this is the legal process to follow before the courts, in this case the criminal courts
More peculiarities. On the one hand, even if it's more a doctrinal question than a practical one, or maybe not, the public prosecutor should not present complaints, but lawsuits, because this is the legal process to follow before the courts, in this case the criminal courts. The lawsuit (querella) is a much more formal document than the complaint (denuncia), which may be verbal, more complete in relating the events, in the legal precepts the claim is based on and, above all, it shows interest in playing part in the process, which, in the case of the public ministry, is obligatory.
The story that the public prosecutor tells, as you can see on this very website, is quite unspecific. So much so that, on the one hand, it doesn't even direct the complaint against anyone, something unheard of from the public ministry. And, on the other hand, more unusual still is that it asks, as an investigation, that the Civil Guard prepare a report. It's doubly unheard of because, without a report, how can the public prosecutor solidly construct its written complaint? The ordinary, and logical, process is that the public prosecutor starts work once the judicial police presents its report. But it's more than surprising in view of what has been clear in recent days in Catalonia: that the public prosecutor has, as a matter of fact, the Civil Guard to carry out all the preliminary proceedings it believes necessary, as long as it doesn't mean interference with fundamental rights, interference that is only allowed under circumstances evaluated by the instructing judge.
Here it would be said that the public prosecutor has acted more like a private individual, reporting an event and claiming judicial help to verify its suspicions. It's all very strange. Pondering this, we might reach the conclusion that it's a strange weather balloon, more or less intimidatory, both for the people (Jordi Sánchez and Jordi Cuixart) and for the political party (CUP, Popular Unity Candidacy) that it mentions, but who are charged with nothing.
No public, tumultuous uprising took place, nor was force used, nor any action on the fringes of the law, nor was any authority blocked from carrying out its job.
Stranger still is to not make any attempt (in a lawsuit this omission would have been impossible) to set the events it relates, besides how they line up to reality, within a legal regulation, what we call subsumption. Aware of this, however, it sets the legal evaluation of the events on the level of attempted crime, in other words, started, but not yet consummated, something which carries a reduction of the sentence.
At any rate, to attempt the crime requires the elements that make up the definition to start to appear. From what we saw, no public, tumultuous uprising took place, nor was force used, nor any action on the fringes of the law (they were exercising the fundamental right to protest) nor was any authority blocked from carrying out its job. No sign of sedition surfaced.
However, we've got it, sedition, on the board. And it was important for the dynamics of the repression of the 1st October vote, following the judicial route, to investigate the potential indictments to the National Audience which, given its role in all types of cases, wasn't guaranteed to genuflect before the central government. And, above all, if the public prosecutor manages, in such an irregularly unheard of manner, to set in motion the National Audience, all the connected
One last note. The competence of the National Audience to judge sedition cases isn't clear at all. Rather I would say the opposite: that the competent court is the provincial audience in the territory where the alleged crime was committed. To attribute the indictment to the central court is the product of historical inertia with no legal basis since, as I said at the start, sedition isn't a crime against the institutions of the state (which is was before 1995), rather a crime against public order, outside the jurisdiction of the National Audience.