The lawyer Gonzalo Boye (Viña del Mar, Chile, 1965) has not hidden his skepticism about the reform of Spain's sedition law, which was registered as a bill in Congress this Friday. As the person responsible for the defence of the exiled pro-independence leaders in Brussels, he assures that this reform does not change anything about the situation of the Catalan president in exile, Carles Puigdemont, and, he adds, nor it will serve to lower the 13-year ban on holding public office currently faced by the ERC leader, Oriol Junqueras. Boye estimates that approximately next February, the ruling of the Luxembourg court will be published - and that it will be this EU court ruling that allows the return of Puigdemont.
Beyond its effect in Catalonia, he warns that this reform does not comply with the criteria of the European Court of Human Rights (ECHR), because it criminalizes fundamental rights, by discouraging protest actions and mass demonstrations. And he raises questions about the meaning and real impact of a law that uses terms that he sees as ambiguous to decree punishments for those who "acting in a group and with the goal of attacking the public peace, carry out acts of violence and intimidation against people or things, (...) or invading facilities or buildings”.
Why this skepticism?
There are things, especially the exposition of motives that I find extremely dangerous and others that are extremely vague in terms of definition. Criminal offences, the more precise and more specific they are, the more legal certainty is provided, and here there are some terms that generate a lot of confusion. Executing acts of violence and intimidation on people I can understand; but I don't know what violence or intimidation is when it is about objects. It confuses me. Are we talking about scaring a chair, or a table or a house? I don't know how to intimidate an object.
The reform does not comply with the ECHR's criteria on the exercise of fundamental rights, and maintains the possibility of a court interpreting it as it wishes.
There are lawyers as well as an organization like Òmnium Cultural who are beginning to warn about what this aggravated public disorder crime represents. Could it affect people who take part in a mass demonstration or try to stop a home eviction or take part in a vote as on 1st October?
No doubt. When you act [he reads the draft bill] "in a group and with the goal of threatening the public peace..." - let's define public peace - and [again reading] "...carrying out acts of violence or intimidation against people or objects, obstructing public roads, causing danger to the life or health of people, invading facilities or buildings..." This, basically, does not comply with the ECHR's criteria over the criminalization, with the effect of acting as a deterrent, on the exercise of fundamental rights. From a legal point of view - and I think that an abstraction should be made of the Catalan case - in general terms I do not see that any problem is solved. Some concepts are simply changed, it opens a range of possibilities that did not exist before and the possibility of a court interpreting as it wishes is still maintained.
Are we talking about a repeal, replacement, reform...? What is it? And does the fact that it is a repeal or a reform affect the sentences [of the Catalan political prisoners]?
That is a question that will have to be decided by the second chamber of the Supreme Court. What we have here is a substitution of norms, not a repeal. A repeal is the removal of punishable conduct from the penal code.
Whatever you call it, the problem is the facts. The facts [of what happened] have no legal relevance outside Spain.
In the case of the Catalan exiles, how will it affect them? The spokesperson for the PSOE in Congress, Patxi López, says that this will serve to facilitate their extradition...
I didn't know that this gentleman knew about extradition... They keep getting confused over the same thing. Whatever you call it, the problem is the facts. The facts [of what happened] have no legal relevance outside Spain. Germany and Belgium have already said so. What's more, Belgium has said more important things, it has said: "There is a risk of violation of fundamental rights here, and that is why we will not hand him over". That is to say, there is currently no scenario that facilitates the delivery or harms it. I don't think the international scene has changed. The only thing that can change is that, if first the pardons came and now this..., maybe the scenario was very bad before and now it is bad.
Is it an acknowledgment that this crime is outdated, as Pedro Sánchez himself acknowledged yesterday?
Certainly. It's recognition. There has been great political work by people like Jaume Asens. But I have to think like a lawyer, not like a politician.
This does not change the situation of either Puigdemont or Toni Comín
Therefore, is it untrue to say that this affects the extradition of the exiles. Has nothing changed in their situation?
This does not change the situation of either president Puigdemont or Toni Comín. It could change, to some extent, that of Clara Ponsatí. But it is a topic that needs to be discussed when the time comes.
In the case of exiled Catalan minister Lluís Puig, the first person that Brussels said they would not extradite, he was not accused of the crime of sedition...
No. It was a matter of misuse of public funds and the crime of misuse of funds has not been touched upon.
Therefore, in his case, no longer sedition, extradition was not accepted...
No, it was not accepted.
Nor will this affect the request for lifting of the Catalan MEPs' immunity that was passed in the European Parliament?
I imagine we will have to discuss what they want to do now. But the reform will arrive late, by the time the [immunity] issue will have been resolved.
You said that after February there may be news with the rulings of the EU General Court, about which you have always been optimistic...
I estimate that the ruling will come out two or three months after the hearings, and the hearings are on November 24th and 25th.
Do you foresee that Puigdemont will then be able to return without being arrested?
In theory, without them having to arrest him. They are two different concepts. With his full immunity he has a protection that in legal terms prevents his arrest, but so far we have also seen a series of actions that go beyond what is legal...
Could the decisions to be taken by the Luxembourg court be affected by this reform?
No. Among other things, because it has not even been passed.
It won't be in time.
It does not affect the essence of the [legal] discussions and it won't arrive in time either.
How will this reform affect the sentences that the leaders of the independence process already face, those who have already been convicted of sedition and also of misuse of funds?
First, it must be clear that they have been pardoned. What has not been pardoned is the part of the sentence corresponding to the ban on holding office. That ban was calculated based on a concurrence of offences, meaning it was based on the upper half of the range of sentences for the most serious offence. Now the sentence for the crime of sedition is lowered and that of misuse of funds is raised, and misuse of funds carries a ban from office of ten to twenty years in the aggravated version. Therefore, my understanding is that there will be no modification.
Will there, then, be no modification of the sentence for those who have already been convicted?
No. The thing is that they are pardoned, the penalties no longer exist.
The ban on holding office for those convicted is calculated with respect to the most severe crime. If sedition become less severeit will be misuse of funds, which has penalties that are the same or worse
But they are still banned from office...
Of course, but the ban on holding office, which was calculated with respect to the major crime of sedition, should now be calculated based on the crime of misuse of funds, which would be the [new] major crime, and the penalties for misuse of funds are equal to or more severe than those of sedition.
It seemed that this was not the calculation being made. In fact, information has already been published in Madrid about whether Oriol Junqueras could stand in the next elections, for example...
Of course. I hear about law. I don't get into politics. Really. The sentence clearly states that [the offences were in concurrence]. Based on the current Penal Code, which is not affected by this reform, with concurrent offences, the penalty is in the upper half of the range of the most serious offence. If this crime is reduced, that of the most serious crime is still applied, which is currently sedition... it is enough to go to the misuse of funds penalties to be clearer about what these penalties would be.
So who could benefit from this reform? Those convicted who have no misuse of funds offence?
Yes.
The reform would affect those convicted who have no misuse of funds and, in the case of the exiles, perhaps Clara Ponsatí and, of course, Marta Rovira
And in the case of the exiles?
It could affect Clara Ponsatí, we will have to see how the Supreme Court reacts and also, of course, Marta Rovira.