Criminal Code reform: the changes explained

The Spanish Congress is set to approve the reform of Spain's criminal code on Thursday.

Sedition – an archaic crime for which Catalan pro-independence leaders were handed down decade-long sentences – is to be erased and replaced with a lesser offense: a reformulated crime of aggravated public disorder. 

These legal reforms come in parallel with pro-independence Esquerra Republicana supporting the Spanish budget, although both sides publicly deny that the two issues are linked. 

In addition, penalties for misuse of public funds will be modified to between one and four years when profit is not a motive, and there is a new crime of illicit enrichment for public officials.  

Here, Catalan News takes a look at the current and proposed laws and what the changes would mean. 

Sedition

"Chapter I of Title XXI is erased" reads the new document. The chapter in question has a one-word title: Sedition.

That word – and the six articles below it that since 1822 have laid out the punishment for the crime of sedition – will disappear from the penal code. 

Described in article 544 as "rising up publicly and tumultuously to prevent, through force or outside legal channels, the application of the law," sedition carries a maximum prison sentence of 15 years.  

Its removal could have implications for the pro-independence leaders that were imprisoned for sedition. Although they have since been pardoned, their original judgements still stand, including bans on holding public office. These could now be revised. 

There could be implications too for exiled pro-independence figures, including former president Carles Puigdemont. 

If they were to be tried in Spain, they would not face sedition charges. On the other hand, Socialist MP Patxi López has argued that the extradition process could become easier, as extraditions were prevented in some cases as sedition did not exist as a crime in other European countries. 

Public Disorder 

Other major changes to the penal code are to Chapter III of Title XXI: On public disorder. 

Article 557 is amended in several aspects. Firstly, public order offences disturbing the peace, which currently apply to "acts of violence or threats" against "people or things" will widen to include two more categories: "acts of violence or intimidation" on "people or things" (as before), "obstructing public roads causing risk to the life or health of people", or "invading facilities or buildings." 

Some groups have complained about this change, including the Sindicat de Llogateres (Tenants' Union), whose spokesperson Jaime Palomera condemned the new text as an "attack against the right to assembly and protest." 

These public order offences will carry a sentence of six months to three years. 

Secondly, the new text sets a punishment of between three and five years' imprisonment for "aggravated public offences" for those who commit the above acts "with a crowd that has a suitable number, organization and purpose to seriously affect public order." 

Previously, the maximum sentence for the crime of aggravated public disorder was six years. 

The reform also adds that if organizers are considered "authorities", the penalty of disqualification from public office "will be absolute for a period of six to eight years".  

The replacement of sedition with public disorder offences, therefore, means lower sentences, but also the new law would require there to be "violence or intimidation," something which wasn't necessary in the sedition convictions handed down to pro-independence leaders – it was enough that there was "mass disobedience", that prevented authorities from carrying out tasks. 

In the end, the Socialists and Podemos introduced an amendment to prevent public disorder from being attributed to social movements when they occupy a public place, as long as they act without violence. 

Misuse of public funds 

Like sedition reform, changes to the crime of misuse of public funds stem from talks between Catalonia's governing party Esquerra Republicana and Spain's governing Socialist party and have generated heated debate in Congress and beyond. 

The reform distinguishes between various types of misuse of public funds, according to whether there is a motive of personal profit or not. 

One change will be that applied to article 433 of the penal code which establishes that, when there is no personal or third-party enrichment, officials who divert resources to a use other than what they were intended will be sentenced to prison terms of one to four years, and disqualification of two to six years, as long as there is "serious damage or obstruction of service." In the current criminal code, this conduct may lead to between two and twelve years behind bars. 

However, if the facts do not include "serious damage or obstruction of service," then the penalty will only be disqualification of one to three years and a fine. 

Illicit enrichment 

The reform of Spain's criminal code also includes the creation of a new crime of illicit enrichment or unexplained wealth. It will mean up to three years in prison for public officials who cannot justify a personal enrichment of more than €250,000 upon request from an official body within the first five years of leaving office.  

One text, many interpretations

Interpretations of the reforms differ within the independence movement. While governing party Esquerra has welcomed them – with president Pere Aragonès pointing out, for example, that the "Supreme Court did not find referendum leaders guilty of public disorder" – Junts per Catalunya's Jordi Turull says the rewritten laws are "tailor-made" to say the events around the independence referendum of 2017 were a crime. 

Away from the independence camp, even the two parties who have put forward the reform do not seem to agree on how it will be interpreted.  

The leader of the Socialists in Catalonia, Salvador Illa, said: "The events of 2017 are not decriminalized, and we say 'no' to amnesty," while the leader of Unidas Podemos in congress, Jaume Asens said: "There's no crime in the [reformed] penal code that allows the prosecution of [the independence push of] 2017, that's my opinion." 

In short, there are widely differing answers to the question: Would 2017 independence vote be a crime under revamped criminal code?

The opinion that counts, that of Spain's Supreme Court, remains to be seen.  

Other changes: Labor law, Constitutional Court blockage, 'only yes means yes' law 

Other changes included in the legislation include an amendment to labor law, an attempt to unblock the renewal of the Constitutional Court and guidance on the 'only yes means yes' law. 

Employers who repeatedly breach labor legislation will face sentences of between six months and six years in prison. It will apply to businesses that "impose illegal conditions" on workers with working patterns that are not stipulated in their employment contracts. 

The Spanish government has also moved to bring in reforms to try to solve the ongoing blockage by the conservative People's Party over the renewal of magistrates in the Constitutional Court. These reforms are pending the decision of the Constitutional Court, which convened an emergency meeting that was then postponed to Monday, December 19 following a request from the People's Party to stop them from going ahead. 

The Socialists and Podemos also incorporated an amendment to the declaration of the reasons for the 'only yes means yes' law, to try to instruct judges that it is not mandatory to reduce sentences because of the new law. The Supreme Court has already made it clear that it disagrees with the government's interpretation.