04.09.2014 - 15:29
The Catalan institutions have received many threats when there has been talk of the legal consequences of holding the consultation on 9 November if the Spanish Constitutional Court (CC) should suspend it: prison for president Mas, suspension of autonomy and many other frights, some very dramatic but all part of a strategy of fear. But what is really true? What tools are available to the Spanish government if the sovereigntist parties organise the consultation despite a prohibition from the CC? VilaWeb has consulted experts in criminal, constitutional and international law, who have explained what provisions the legal ordinance contains to take action against the Catalan process.
First of all the criminalist Joan Carreras clarifies that the Spanish criminal code (pdf) is not prepared to answer political processes, but is intended to ‘punish’ in the event of crime. The Catalan process is a perfectly valid process of political aspiration within the constitutional framework, he says. In the case of a CC sentence against the declaration of sovereignty, he adds, it is an aspiration that can fit into the Spanish constitution.
Having made this clear, Carreras explains that there are several articles of the Criminal Code that the party concerned, the Spanish government, could invoke with a ‘forced interpretation’, if President Artur Mas’s Government and all the political forces in favour of the right to decide should maintain the consultation despite the precautionary suspension of the CC.
Now, he believes it is difficult to find a rigorous place between the offenses currently covered by the Code and the fact of calling elections or a consultation without having the authority to do so. One of the fundamental principles of this area of law, Carreras explains, is that to apply a criminal standard this rule must necessarily explicitly condemn the judged action, which in not the case here. ‘A bad interpretation can in no case be made’ for the defendant, says Carreras.
This was not the scene a decade ago. Carreras explains that part of Article 506 concerning the usurpation of power was repealed in 2005. In this article, which was brought in by the government of José María Aznar in 2003, any authority calling elections or popular referendums without power to do so was punished, and the punishment could be from three to five years in prison and disqualification. In the same amendment, those who facilitated, promoted or ensured the performance of such proceedings or consultations were also punished.
These articles were modified during the government of José Luis Rodríguez Zapatero, fulfilling one of his campaign promises. The preamble of the Basic Law amending the provision establishes that the conducts referred to in the modified articles ‘do not have sufficient weight to merit a criminal response, let alone if prison is expected’. And he also says that ‘the exercise of the powers to convene or promote consultations by those not legally attributed is perfectly controllable by routes other than the criminal’.
Rebellion, sedition or malfeasance
Carreras admits, however, that the state government can use the criminal code and accuse Mas or the Catalan government of rebellion, sedition, usurpation of their duties or malfeasance. ‘Making a biased interpretation, the Spanish government may consider that Mas’s action constitutes such crimes,’ he says. This would open the door to a judicial proceeding, against a protected figure in the case of President Mas, subject to all jurisdictional and procedural safeguards.
Carreras first mentions to Article 506, on the usurpation of powers, which refers to ‘the authority or public official who, without authority, issues a general provision or suspends the execution’. The penalty for this action would be a prison sentence of one to three years and disqualification from public office.
Another case is ‘rebellion‘, as defined in article 472 as an offense committed by those who rise up violently and publicly for objectives, amongst which to ‘repeal, suspend or modify all or part of the constitution’, or ‘declare independence from one part of the country’; in this case, a unilateral declaration of independence. The penalty would be twelve to twenty years.
Carreras emphasizes that in this article violence is specifically needed, and calling a consultation is not this. Going further, he also mentions article 544 of the Criminal Code, which defines the crime of sedition. ‘Those accused of sedition are those who, without incurring the crime of rebellion, rise up publicly and in mass to prevent, by force or beyond legal means, the application of laws.’ The punishment is from eight to ten years of prison.
This article, says Carreras, does not speak of violence, but refers to the legal concept of “riot”, or many people in the street. He believes that it is a legal concept that ‘does not make much sense.’
As for the abuse of power or malfeasance, it is a case where the public authority, Mas in this case, ‘knowing that they are committing an injustice, pass an arbitrary decision on an administrative matter’. The penalty would be disablement from office for seven to ten years.
However, Carreras says that Mas does not work in his own benefit or that of his family and that the subjective part of the offence also has to be considered. ‘It suffices to sign a resolution to commit malfeasance,’ he says, but what author intends with his action has to be taken into account.
The same for both sides
When Carreras explains these articles that the Spanish Government can invoke to accuse Mas, he reminds us that the Criminal Code applies to both sides. In other words, in the event that the State Government attempts to suspend the autonomy –as is often speculated – the Catalans can also accuse Madrid of malfeasance, as it would have incurred an abuse of power: ‘Not only can the president of an Autonomous Community be accused of certain actions, but the state can too. ‘
What constitutional control mechanisms are available to the Spanish government?
With regard to the articles of the constitution that Spain could argue if Mas disobeyed it, Marcel Mateu, constitutional law professor at the UAB, refers to Article 155 in which it is specified that if an autonomous community fails to meet the obligations that the constitution or other laws impose upon it, or acts in a way that seriously violates the general interests of Spain […] with the approval of the Senate the necessary measures may be taken to forcibly bind it to such obligations.
Mateu explains that the PP could assert its absolute majority in the Senat to authorise its government to apply special measures, although the Spanish constitution does not specify what measures.
He believes that Article 155 is not intended for a case like this, but admits that the state could understand an attempt against the general interest of Spain. He says that in academic circles, this article is known as the ‘Companys clause’, i.e. it aims to prevent acts of disobedience such as the Events of the Sixth of October, 1934, during the Second Republic.
Without international recourse
If the Spanish government should accuse Mas of the crimes above, he would be judged in Spain, as an internal affair. Beyond that, ‘there is no recourse to international instances,’ the political scientist Ferran Requejo explains. He says that no appeal could be made to the Court of Justice of the European Union, because community legislation is not in play; nor to the International Court, which is a body of the United Nations, and jurisdiction for its Member States. At the present time, ‘Catalonia is not an international political actor’.
As for the European Court of Human Rights, he believes the case should be presented as an issue of violation of human rights. ‘I understand there are no two ways to look at it’ he says. Moreover, to reach this court of the Council of Europe, the internal instances of the states must first be exhausted. In the case of Spain, after going through the relevant jurisdictions, it would reach the Constitutional Court.
