- INTRODUCTION.
The repealed Penal Code of 1973 punished the crime of rebellion in its article 214, which stated that:
“Those who rise up publicly and in open hostility against the Government for any of the following purposes are guilty of rebellion:
To remove the Head of State or force him to carry out an act contrary to his will.
To prevent the free holding of elections for public office throughout the territory of the Nation.
- to dissolve the Cortes or prevent them from meeting or deliberating, or to wrest a resolution from them.
4.º To subtract the Nation or part of it or any Corps of troops, or any other kind of armed force, from the obedience of the Government.
To use and exercise by himself or to deprive the Ministers of their powers or to impede or restrict their free exercise”.
As can be seen, the literal wording of this article did not require the concurrence of violence in the uprising to punish for this crime: it was sufficient that the uprising was public and “in open hostility against the Government”, which was not necessarily equivalent to the use of violence.
But the wording of the crime of rebellion changed with the entry into force of the new Penal Code of 1995, now in force, whose article 472 states that:
“Those who violently and publicly rise up for any of the following purposes are guilty of rebellion:
1.º To repeal, suspend or totally or partially modify the Constitution.
To remove or deprive the King or Queen, the Regent or members of the Regency of all or part of their prerogatives and powers, or to force them to carry out an act contrary to their will.
3.º To prevent the free holding of elections for public office.
To dissolve the Cortes Generales, the Congress of Deputies, the Senate or any Legislative Assembly of an Autonomous Community, to prevent them from meeting, deliberating or resolving, to wrest from them any resolution or subtract from them any of their powers or competences.
To declare the independence of a part of the national territory.
To replace the Government of the Nation or the Governing Council of an Autonomous Community with another, or to use or exercise by itself or deprive the Government or Governing Council of an Autonomous Community, or any of its members of their powers, or to prevent or restrict their free exercise, or to force any of them to carry out acts contrary to their will.
7.º Subtract any kind of armed force from the obedience of the Government.”
The new wording of the precept, in addition to updating the list of purposes that the public uprising must have in order to be considered rebellion, introduces – as a new element of the crime – violence. It is no longer enough with a public and hostile uprising: now it is necessary that the uprising be violent.
And it is this new element of the crime, violence, which has given rise to most doctrinal discussions when it comes to interpreting this type: what is understood by violent uprising? is purely physical violence necessary? to what extent must this violence be sufficient to put the protected legal right at risk?
These discussions have had their peak – as is logical – on the occasion of the recent events in the autonomous community of Catalonia, which culminated in the holding of the illegal referendum of October 1, 2017, the consequent unilateral declaration of independence, and the so-called trial of the procés. In that trial, the assessment of the concurrence or not of violence was presented, a priori, as fundamental for the fate of the defendants although, as we will see, finally this element was not so decisive for the ruling of the Court that, although it considered proven the existence of violence in the prosecuted facts, it acquitted the defendants -for different reasons- of the charge of rebellion.
In this paper we will begin by analyzing, in the first place, the -few- precedents that we find on the crime of rebellion in our jurisprudence, focusing on the interpretation that each of the resolutions studied makes of violence as an element of the crime. Next, we will study how the Supreme Court addresses this same issue in the so-called “procés” ruling and why, despite considering the existence of a violent uprising to be accredited, the ruling acquits for this crime. Finally, I will refer to the analysis made by this judgment of the crime of sedition and its application to the facts prosecuted.
- BACKGROUND
2.1. THE SENTENCE OF FEBRUARY 23RD
Prior to the procés, the only relatively recent Supreme Court ruling on the crime of rebellion is the one that resolved the cassation appeals filed by those convicted in the trial of the 23-F coup d’état (STS of April 22, 1983).
But this is a precedent of little or no use for the purpose of this article, since it is a ruling prior to the entry into force of the 1995 Penal Code. In fact, this ruling applies the then current 1945 Code of Military Justice, article 286 of which stated that:
“Those who take up arms against the constitutional order, the Head of State, its Government or fundamental Institutions of the Nation are guilty of the crime of military rebellion, provided that they do so under one of the following circumstances:
- That they are commanded by military personnel or that the movement is initiated, sustained or aided by army forces.
- That they form a militarily organized group composed of ten or more individuals and are armed with weapons of war.
- That they form a group of less than ten if in different national territory there are other groups or forces organized in the manner indicated in the preceding paragraph, as well as in any case in which aircraft, warships or battle tanks are used, or in which there is an assault on a powder magazine, artillery park, military arsenal or warehouse of weapons of war, taking possession of them.
- Hostile acts against the forces of the armies.
- Those who are so declared in special laws or in the orders of the military authorities shall also be considered guilty of the crime of military rebellion.”
As far as we are concerned, the most noteworthy aspect of the 23-F sentence is that -despite the requirement of an uprising “in arms” established in the aforementioned precept- it rules out violence as an indispensable element of the crime of military rebellion. That sentence states that “violence is not an indispensable requirement of rebellion, since it can be agreed upon and carried out in a bloodless manner without, for that reason, the behavior of the agents being disqualified, as shown by the history of our country, where there have been many pronunciamientos or uprisings without violence or bloodshed -v.g., that of Pavia, which put an end to the rebellion. that of Pavia which put an end to the first Republic, that of Daban and Martinez Campos which, in 1875, restored the Bourbon Monarchy, or that of General Primo de Rivera in 1923 (all of them triumphant and therefore their authors were not put on trial) – and which ratifies the content of article 294 of the Code of Military Justice, which, in granting an excuse of acquittal or substantial mitigation to rebels not included in Article 287, presupposes that said rebels lay down their arms before having used them, that is, without violence, aggression against persons or bloodshed having occurred during the course of the rebellion; All this without prejudice to emphasize that what is projected and agreed as bloodless, becomes violent and bellicose as soon as resistance or opposition is offered to the plans of the rebels, who can never assert – given that the future cannot be predicted by humans – that their uprising, in all certainty, will be bloodless, without victims and without bloodshed”.
As we shall see, the last of the arguments used by the sentence of 23-F to condemn the non-violent rebellion, namely “that what is planned and convenient as bloodless, becomes violent and bellicose as soon as resistance or opposition is offered to the plans of the rebels, who can never assert -since the future cannot be predicted by humans- that their uprising will, will surely be bloodless, without victims and without bloodshed”, is going to be assumed by our courts (in the resolutions of the TSJPV and TSJC that we will deal with in the following section) when interpreting the necessity of violence for rebellion in the 1995 code.
2.2. THE IBARRETXE AND ARTUR MAS CASES
Since the entry into force of the current Penal Code and until the judgment of the procés, the crime of rebellion has only been addressed in three resolutions: two of the High Court of Justice of the Basque Country and a third of the High Court of Justice of Catalonia.
These three resolutions establish the need for violence for the concurrence of the crime of rebellion, but soften this requirement to the point of making an interpretation of the violent element somewhat extensive and similar to that made by the 23-F sentence: according to these three resolutions, violence does not require the actual use of force, and it is sufficient for the uprising to be considered violent, and therefore rebellion to exist, that there is a serious and well-founded threat of violence. In other words, it is sufficient that a hypothetical concurrence of violence is foreseeable for this element of the type to be present.
Thus, Order 11/2005, of March 1, 2005, issued by the TSJPV, which filed a complaint against the then Lehendakari in relation to the so-called Ibarretxe Plan, deals with violence as an element of the crime of rebellion, and points out that “the uprising must be classified as violent, according to general opinion, when it is accompanied by the exercise of physical force, or, when the use of this, if necessary in order to achieve one or some of the ends indicated in the criminal law, constitutes a serious and well-founded threat, because the insurgents are willing to achieve them at all costs, even resorting, if necessary, to the use or the use of the same”. Therefore, according to the TSJPV, the uprising is violent -and therefore, rebellion exists- when it is accompanied by physical force, but also when there is a serious and well-founded threat of violence even if it does not occur.
The TSJPV confirmed this interpretation of the element of violence in the crime of rebellion two years later, in a new Order, number 25/2007, of November 27, in which it archived another complaint filed against Lehendakari Ibarretxe, this time by the union Manos Limpias. In this new resolution, the TSJPV makes the same extensive interpretation of the element of violence and does so in exactly the same words as in the previous resolution.
In the light of these two Orders of the TSJPV we find a first interpretation of the requirement of violence in the crime of rebellion: the uprising will be considered to be violent when there is a serious and well-founded threat of the use of force if necessary. It is sufficient that the use of force is foreseeable, because the insurgents are willing to resort to it if necessary, for us to speak of the crime of rebellion, regardless of the fact that the violence may not actually take place. In other words, violence is considered to be serious intimidation.
This same extensive interpretation, with fewer words but with greater clarity, will be endorsed by the High Court of Justice of Catalonia (Civil and Criminal Chamber, 1st Section), in the Order of March 24, 2014, which rejected a complaint by Manos Limpias against the then President of the Generalitat Artur Mas. According to this resolution, “it is a necessary presupposition of the crime that with the intention of declaring the independence of part of the national territory a violent and public uprising takes place, that is, through an active attitude by force or being willing to use it and in a public, patent or externalized way”.Again, it is not necessary that the use of force takes place for the uprising to be considered violent: it will be enough that the perpetrators are willing to use it.
On the other hand, it does not maintain the same position the Order of December 21, 2015 of the Central Court of Instruction No. 3 of the National High Court, which filed a complaint of the Prosecutor’s Office against the councilors of Premiá de Dalt (Barcelona) who voted in a plenary session of the City Council a motion in favor of the resolution of the Parliament of Catalonia that agreed the beginning of the independence process. The Court ruled out the existence of the crime of rebellion in that motion because “the facts described in the complaint, according to the terms referred to therein and attributed to the City Council of Premià de Dalt, cannot be described as violent (the DRAE identifies violent with one who “acts with impetus and force” or with one who “is easily carried away by anger”), as the crime of rebellion specifies”. As can be seen, this Order does require that the violence actually takes place, it refers to the definition of violence in the Dictionary of the Royal Spanish Academy, and at no time does it refer to the mere disposition to resort to violence as sufficient to consider the uprising as violent.
Therefore, we can summarize the state of the matter before the ruling on the procés in two points:
- The four resolutions studied make it clear that violence is necessary for the crime of rebellion to exist.
- But three of them make a somewhat extensive interpretation of the concept of violence, considering violent uprising that in which the perpetrators are willing to use force if necessary, even if they do not finally resort to it.
- THE CRIME OF REBELLION IN THE PROCÉS SENTENCE
3.1. CONCEPT OF VIOLENT UPRISING
The so-called judgment of the procés (STS 459/2019 of October 14) is the first in which the Supreme Court interprets the crime of rebellion in its current wording and delimits its elements.
In the first place, and with greater development, our High Court endorses the previously stated doctrine of the High Courts of Justice of the Basque Country and Catalonia on the concept of violent uprising.
The sentence recalls that violence constitutes an essential element of the type, but recalls that in the Penal Code the adjective “violent” has been used to describe “not only actions that are projected on people, requiring physical contact, but also compulsive violence, equivalent to serious intimidation”. Thus, psychological violence would be admitted as an integral part of the crime of rebellion, so that the type covers “uprisings planned in a bloodless but intimidating way or uprisings that do not achieve their objective and that do not carry out acts of physical violence of a certain entity”. This extensive interpretation of violence would be supported by the existence of other precepts that include among the acts of violence what is actually serious intimidation, such as art. 173.3 or 515 of the Penal Code.
In accordance with this extensive interpretation of the concept of violence, the judgment considers accredited the existence of violent episodes in the prosecuted facts, specifically in two moments: the mass demonstrations that took place on September 20, 2017, which created an intimidating atmosphere that prevented the correct development of certain entry and search proceedings, as well as the incidents of October 1, during the celebration of the illegal referendum, which resulted in clashes between citizens and agents of the authority, in many cases resulting in injuries.
3.2. INSTRUMENTAL, FUNCTIONAL AND SUITABLE VIOLENCE
But, the sentence recalls, it is not enough to establish the mere existence of violent episodes to subsume the facts in the crime of rebellion. It is also necessary that the violence used be instrumental, functional and suitable.
The violence must be instrumental in that it is directly preordained, without intermediate steps, to any of the seven purposes described in article 472: in the case at hand, the declaration of independence of a part of the national territory. This does not occur in the procés since, for the Court, the facts begin according to the accusations in 2012, at which time a succession of events begins that would culminate with the illegal referendum, which was called even before the production of the violent episodes of September 20 and October 1, 2017. Thus, the acts of violence – which the sentence reduces, in its proven facts, to those that occurred on those two days – would actually be “acts of culmination of a process”, but not “instrumental acts to make what was already a reality a reality”.
Furthermore, violence in rebellion must be functional, which implies that the objective of the violent acts must coincide with one of the purposes described in article 472. The sentence understands that in the case of the procés the violence cannot be considered functional either, since it did not seek to create a potential risk for the protected legal right: the defendants did not directly seek the independence of that territory, but the creation of a suitable climate to force the Government of the Nation to negotiate. That is to say, in the facts declared proven, independence was not to be achieved through the use of violence, but through a subsequent negotiation with the Central Government.
Finally, and perhaps most decisively, the violence must be capable of endangering the protected legal interest. We are dealing with a crime of cut-off result, whose consummation is prior to obtaining the result, so that it is not necessary for the uprising to succeed and the protected legal property to be effectively injured for the consummation of the crime of rebellion: it is sufficient that the legal property be put at risk. But what is necessary is that the protected legal right be endangered. And that risk, says the sentence, “must be real and not a mere daydream of the author or a deceptive artifice created to mobilize citizens who believed they were attending the historic act of founding the Catalan republic and, in reality, had been called as a tactically essential part for the true purpose of the authors” -true purpose that, according to the proven facts, was not directly the independence of the territory, but the negotiation from an advantageous position with the Government of the Nation-. In addition, the Court recalls that “the rebels did not have the most elementary means, if that were what they intended, to subdue the State”, as demonstrated by the fact that a decision of the Constitutional Court and the application of Article 155 EC were enough to deactivate the process, which even “determined some of the defendants to undertake sudden flight”.
As the violence developed lacks the elements of functionality, instrumentality and suitability, the sentence rules out the objective type of the crime of rebellion in the process.
3.3. SUBJECTIVE ELEMENT IN REBELLION
But the sentence does not stop at the objective type, it goes a step further and also rules out the subjective element.
As has been said, the Court understood that “the purpose of the defendants’ project was not to link their actions directly to the effective establishment of a legal regime such as the one designed in the parliamentary decisions (…). The aim was in fact to convince a third party, the democratic Government of Spain, to negotiate with the Government of the Generalitat the way to achieve the independence of a part of the Spanish territory”. For the authors of the sentence, the defendants knew from the outset that they could not achieve the desired independence on their own and by mere deeds: neither the disconnection laws were a sufficient legal instrument for this, nor could a referendum with so few guarantees ever be approved by impartial international observers. So aware were they of this, the High Court points out, that at the very moment of proclaiming the result of the referendum, the now fled President of the Generalitat left the declaration of independence in abeyance. By actually seeking the intervention of a third party -the Government of the Nation- as an essential prior step to achieve that independence, the causal link between the prosecuted behavior and the independence sought would be interrupted. All this leads the Court to conclude that “it is thus excluded an essential subjective element of the criminal type imputed in the accusations, namely, that the independence and constitutional derogation are the true purpose sought as a direct effect of the uprising which is a presupposition of the type”.
3.4. RECAPITULATION
Recapitulating the above, we can summarize the essence of the doctrine of the Supreme Court on the crime of rebellion, reflected in the Judgment of the procés, in the following points:
- Violence is an essential element of the type.
- However, this violence does not require the use of force: compulsive violence, equivalent to serious intimidation, is sufficient.
- This violence, in addition, must be instrumental, functional and suitable for the endangerment of the protected legal property.
- As for the subjective type, the intention of the perpetrators must be the direct achievement -without intermediate steps- of one of the purposes described in article 472 PC.
- THE CRIME OF SEDITION IN THE PROCÉS SENTENCE
The sentence, after ruling out the crime of rebellion, analyzes the qualification of the same facts as sedition, a crime for which the main defendants will be convicted.
Article 544 of the Penal Code states that:
“Those who, without being included in the crime of rebellion, rise up publicly and tumultuously to prevent, by force or outside the legal channels, the application of the Laws or any authority, official corporation or public official, the legitimate exercise of their functions or the fulfillment of their agreements, or of administrative or judicial resolutions, are guilty of sedition.”
Despite a certain similarity between the typical structure of sedition and rebellion, the sentence highlights the incorrectness of considering sedition as a “small rebellion”. This is especially so since the entry into force of the 1995 Penal Code, which places both types under different headings, reflecting the diversity of protected legal assets. Rebellion is included in Title XXI of Book II – crimes against the Constitution – while sedition is found in Title XXII of the same Book – crimes against public order.
Thus, both crimes differ not only in their objective element (public uprising, which is violent in rebellion and tumultuous in sedition) but also, and especially, in the subjective element: while rebels pursue one of the seven purposes listed in article 472, seditious persons “limit their zeal to the impediment or obstruction of the legitimate legislative, governmental or jurisdictional will – the application of laws, the exercise of functions by authority, official corporation or public official, or the fulfillment of their agreements, administrative or judicial resolutions”.
In turn, this same harmful purpose – to prevent the application of laws or to hinder the enforcement of judicial decisions – makes it possible to differentiate sedition from other crimes against public order, such as public disorder in articles 557 and following. The High Court recovers in this sentence the distinction between “public order” and “public peace” as quasi-autonomous legal goods. Public peace would be more related, says the sentence, “with the interest of society in the acceptance of the constitutional framework, of the laws and of the decisions of the legitimate authorities, as a presupposition for the exercise and enjoyment of fundamental rights”, and would be the legal good attacked by the most serious crimes of Title XXII, such as sedition itself. As for the objective type, sedition differs from other crimes against public order in the typical structure of the punishable behavior: the collective uprising. But the principle of proportionality will require “assessing whether the tumult imputed to the perpetrators effectively calls into question the functioning of the democratic rule of law”.
The sentence also emphasizes the multi-subjective nature of the crime of convergence of sedition -a characteristic it shares with rebellion-, which requires a succession of acts and a concert of wills for the achievement of a shared end. The commissive means is the tumultuous uprising and its purpose is to derogate in fact the effectiveness of the laws or the fulfillment of legitimate orders or resolutions. And, as in rebellion, it is a crime of cut result, whose consummation is prior to the achievement of the result, so that it is not necessary that the tumultuous uprising achieves its objective, being sufficient with the endangerment of the protected legal property.
With these notes, the Court considers that, of the facts prosecuted, the events of September 20 -siege to the buildings that were subject to entry and search- and October 1 -human walls during the illegal referendum- are constitutive of sedition, since “from the simple requirement to those who remained agglomerated and compacted to the necessary attempt to override their opposition. Also when the agents have to give up and desist from complying with the judicial order they are carrying before the proven attitude of rebellion and opposition to its execution by a conglomerate of people in clear numerical superiority”. The sentence explains that “a punctual and singularized opposition would exclude some ingredients that could perhaps lead us to other typologies. But in the face of this massive, generalized and strategically planned uprising, it is not possible to avoid the typicity of sedition. The authority of the judiciary was suspended and replaced by the will -the referendum must be held- of the conveners and of those who seconded the call, a will imposed by force”.
As we saw, not any affectation to the public order, without more, allows the qualification of the facts as sedition, to the detriment of other lighter types of the same Title. A particularly serious affectation would be necessary, more directed against public peace than against public order. Therefore, although the qualification of the facts as a crime of sedition is focused on the events of September 20 (“the hostility deployed made it unfeasible on September 20 for officials to comply normally with the orders of Court No. 13 of instruction of Barcelona, causing real fear, not only in the officials who executed legitimate jurisdictional orders – this is the case of the lawyer of the administration of justice acting at the headquarters of the Vice-Presidency – but also in the autonomic officials under investigation, who were to be transferred”) and October 1 (“the behaviors of October 1 involved the use of sufficient force to neutralize the police officers who were legitimately trying to prevent the vote, as they were obliged by express judicial order”), the sentence does not treat them in isolation, and puts them in relation to the whole independence process and the ultimate intention of the defendants, noting that “the aim was to abort compliance with the orders of the Magistrate of the Superior Court of Justice of Catalonia and the Constitutional Court. And all this with a significance that went far beyond the limits of a lax interpretation of the concept of public order, to affect the essential core of this good from a constitutional perspective.
That is to say, although the wording of the sentence, on this point, is not as clear and didactic as we would like, it gives the impression that the Supreme Court considers that events such as those of September 20 and October 1, assessed in isolation and separately from the independence process, would not fit in the type of sedition but rather in other milder ones such as public disorder. And it is the fit of both events in the whole secessionist process that allows to consider affected the protected legal right in its more constitutional dimension, closer to public peace than to public order and, therefore, the conviction for sedition.
Here I find, perhaps, a possible contradiction in the argumentation of the sentence: acquitted for rebellion, among other things, because the immediate purpose of the perpetrators was not unilateral independence but to force a negotiation with the Government of the Nation, but convicted of sedition because the events of September 20 and October 1 were connected – it seems to be clear from the argumentation of the sentence – with the intention of repealing the legislation in force. Could it not also be argued here that, if the true intention of the defendants was to force a negotiation, the more constitutional dimension of public order as a protected legal right was not being affected?