New Spanish Penal Code to come into effect after final Senate approval

A new Spanish Penal Code will come into effect early in 2023 after the final Senate approval on Thursday. The new law removes the crime of sedition and reforms the crime of misuse of public funds, both were the reasons for the convictions of the 2017 referendum leaders.

The legislation was proposed by the Spanish Socialists and Unidas Podemos parties and had the support of Catalan pro-independence and currently governing Esquerra Republicana de Catalunya party. The reform in Senate got 140 votes in favor, 118 against, and three abstaining.

The vote, however, did not come free of clashes, as the Constitutional Court halted a judicial reform before MPs voted it on in Congress last Thursday. Now, the Senate ratified the new Penal Code leaving the articles under study by judges aside.

The legislation will be enacted 20 days after publication in the Spanish Official Gazette.

Controversy

The People's Party spokesperson, Javier Maroto, claimed that taking the proposed law to the Constitutional Court was a good move. 

Those who wanted to reform the Penal Code "clashed with the law, this is what happened," the conservative said before adding that "the PP will challenge it if it is not done right."

One of the pro-independentist parties who voted against the new Penal Code is Junts per Catalunya, the former junior coalition partner in the Catalan government until October.

This political group "does not endorse criminalizing the independence push," Josep Maria Cervera, JxCat senator, said, as he believes that the reform "considers the independence referendum and its organization as crimes."

Constitutional Court halting the process

The Spanish government has had to tackle the criticism from several political parties after wanting to reform the Penal Code urgently. 

The amendments to the law included a new judiciary law, which concluded in a clear clash between the judicial branch against the legislative branch.

Congress was going to vote to change the system to name new Constitutional Court judges and members of the Spanish Council of the Judiciary (CGPJ). 

These two proposals were suggested in Congress by lawmakers during the parliamentary procedure of the reform of the Penal Code submitted by the two governing parties, the Socialists and Unidas Podemos.

The reform anticipated that the CGPJ did not need a majority to appoint the members of the Constitutional Court. Currently, the People's Party is blocking the naming of new members as it is a conservative majority. 

The other amendment is related to the Spanish government's decision on court members. As things are, the executive can appoint two judges but needs to wait for the CGPJ to name its candidates. 

The reform aimed to unlink the appointments from the executive to those from the judicial branch, allowing them to choose the judges even if there was no agreement with the CGPJ.

New Penal Code changes

After being approved by the Senate, the new Penal Code does not include the crime of sedition that Catalan independence leaders were convicted of. It has been changed with the lesser crime of aggravated public disorder.

In addition to sedition, another of the main changes is regarding the crime of misuse of public funds, with the reform distinguishing between whether there is a motive of personal profit or not. The reform also creates the new crime of illicit enrichment.

As is the case with sedition, 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. They have generated a heated debate in Congress and beyond. And while Esquerra chose to back the 2023 Spanish budget following the announcement of the reform, both parties deny these issues are related.

Filling the Sink

Listen to our Filling the Sink podcast episode published on November 19, 2022 to learn more about the crime of sedition and the crime of misuse of public funds and its changes.