1676329705 The Proces is something more than an attack on public

The ‘Procés’ is “something more than an attack on public peace” and the embezzlement is a “profit motive”

The Proces is something more than an attack on public

The Criminal Division of the Supreme Court, which tried and convicted 12 perpetrators of challenging 1-O’s independence and sentenced nine to prison terms, has failed to achieve the government’s intended legislative reform of the crimes of sedition and embezzlement has in favor of the Catalan leaders convicted or prosecuted for the illegal referendum.

The government sought to reduce the penalty for sedition by abolishing the crime and replacing it with aggravated public disturbance with much lesser punishment. But the Supreme Court has dictated the opposite: once sedition is removed, activities such as governance could not be criminalized as they do not fall under the criminal offense of serious public disorder.

The executive planned to reduce punishment for pro-independence leaders who used public funds for the illegal referendum by creating a new, watered-down kind of “common-benefit” embezzlement. But the Supreme Court justices understand that it cannot be applied to the behavior of 1-O leaders.

The Trial Chamber, made up of Manuel Marchena (President and Speaker), Andrés Martínez Arrieta, Juan Ramón Berdugo, Antonio del Moral, Andrés Palomo and Ana Ferrer, also uses their unanimous judgment to notify the government of the legal changes they have created Space of impunity for events like those that took place in Catalonia on October 1st, 2017. These are the main arguments of the judgment:

The aim was to “pave the way to independence”

The court contradicts the government when it declares that the new crime of serious disorder does not replace that of sedition, which included the Procés judgment: “The crime of sedition was something more than a crime against public order because it was among among other things, included goals pursued by those who have stood up publicly and riotously, goals that go beyond the concept of public policy to which the reform appears to adhere,” the Supreme Court explains. And he adds: “The agency that stubbornly defies the mandates of the Constitutional Court, that disregards the prohibitions of the Supreme Court, that conducts a legislative process of rupture — while lacking any legal capacity — is not just troubling public policy.” .

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“Between the crime of sedition, as defined in Article 544 of the Penal Code, and the crime of public disorder in Article 557 – in its historical or updated regulation – there is no essential identity that allows us to affirm once first everything that went with it was now housed in the second,” the car continues. “Now the subjective type is reduced to the desire to ‘attack the public peace’. (…) There is no doubt that the collective disobedience to the requirements of the Constitution or the orders of the agents attempting to carry out an assignment issued by the judicial authority was more than an attack on the public peace, especially if this will was the engine that drove the frustrated desire to achieve the validity of ephemeral laws that paved the way to independence.

A “gap” of unpunished conduct

In this paragraph, the Supreme Court summarizes the risks it believes that the abolition of the government-sponsored crime of sedition poses: “Prior to reform, the crime of sedition did not require violent mobilization. It could have witnessed acts of violence – which was undoubtedly the case in the case being prosecuted – but it was also punishable if it was simply done “outside the law”. The reform creates a gap between the crime of rebellion regulated in Section 472 of the Criminal Code and the crime of public disorder envisaged in Section 557, which in the future could accommodate behavior seriously contrary to the constitutional order, in which the failure to comply with the law and the non-compliance with court orders went unpunished if they did not involve pre-ordered violence for those purposes or did not imply acts of violence or intimidation against any person.”

Embezzlement: “Facts cannot be treated with privilege”

The Supreme Court finds that “the use of public funds to hold the illegal October 1 referendum” does not fit within the new criminal offense of mitigated embezzlement, created to reduce penalties for independence leaders. “It would go against the most basic legal logic to understand that whoever appropriates public funds faces a penalty that can reach up to 8 years in prison, and whoever uses them for criminal or unlawful acts, in our case holding a referendum , prohibited by the court, can be punished with a fine (…). The facts declared proven in our judgment can never receive the privileged treatment that the application of Article 433 of the renewed Penal Code constitutes. Apply the Generalitat’s public funds to finance a referendum that went beyond the competence of those who promoted it, developed after repeated calls from the Constitutional Court and the Supreme Court to avoid it, and finally to a secessionist one process oriented that had no virtuality, can never be considered as “another public application” than that for which these funds were budgeted. And what is most obvious, it can never be understood that it was an act not aimed at profit. Article 432 of the Criminal Code covers both those who appropriate these funds and those who, in breach of their duty of loyalty in the administration, decide to give them a clearly unlawful purpose.

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