Controversial Spanish criminal code reform may not help Catalan independence leader

The Spanish government’s controversial recent changes to Spain’s criminal code, particularly the removal of the crime of sedition, have implications for the legal situation of a number of Catalan independence leaders, some of who have been living abroad to avoid going on trial.

The reform was approved by Congress late last month and came into effect last week. As well as eliminating the crime of sedition, it reduced jail terms for the crime of misuse of public funds in cases where the guilty party did not personally benefit from the money involved.

Socialist prime minister Pedro Sánchez had called for both crimes to be reviewed in order to align Spain’s criminal code with other EU countries. However, the changes were widely seen as being designed to benefit Catalan politicians involved in a failed 2017 secession bid who have been the target of legal action by the Spanish courts ever since. By easing the judicial pressure on the independence movement, Sánchez has sought to calm tensions surrounding the territorial issue.

With municipal and regional elections in May, followed by a general election by December, this is a crucial year in Spanish politics

However, the judiciary’s response to the law change is out of the government’s hands and the supreme court immediately reviewed the charges against the five politicians who have been living abroad.

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The most high-profile of the independence leaders affected is Carles Puigdemont, the former Catalan regional premier who fled Spain for Belgium in 2017, where he has remained ever since, being elected to the European Parliament and battling Madrid’s extradition attempts.

Previously accused of sedition and misuse of public funds, the court has now substituted the former charge for disobedience – which carries no jail term – and adjusted the latter to “aggravated misuse of public funds”, with a prison sentence of up to 12 years. The removal of the sedition charge, which was previously an obstacle to Puigdemont’s extradition because of a lack of a legal equivalent in other EU countries, could in fact make it more likely that he will have to return to Spain to face trial.

“The law may have changed, but the end result hasn’t,” Puigdemont’s lawyer Gonzalo Boye told The Irish Times. “The problem is not the criminal code, the problem are the supreme court judges.”

Curiously, the Supreme Court judge who has been pursuing Puigdemont, Pablo Llarena, has also appeared to take a dim view of the government’s reform, although for a very different reason, arguing in his judicial writ that it had led to “a context close to decriminalisation” of the acts committed in Catalonia in 2017.

Boye said the reform will not encourage Puigdemont to return to Spain and that his fate remains in the hands of the General Court of the European Union. That tribunal must decide whether to strip him of his immunity as an MEP, which would open the way for his eventual extradition.

However, the new criminal code could have a greater impact on the future of other senior Catalan nationalists.

Marta Rovira, secretary general of the Catalan Republican Left (ERC), which governs the north-western region, welcomed the fact that the charge against her had changed from sedition to disobedience, meaning she would not face a prison sentence if found guilty.

“We like the mood music,” Rovira, who has been living in Switzerland since 2018 to avoid trial, said of the news.

Although she ruled out returning immediately, Rovira hinted that she now senses an end to her self-exile, hoping to travel back to Catalonia “with strength, happiness and willingness to reunite with my country, from which I have been unjustly separated”.

Her party colleague Oriol Junqueras, the former deputy premier of Catalonia, faces the same charges as Puigdemont, with the difference that he already served time in jail before being pardoned by the government, along with eight others, in 2021. Having been barred from public office for 13 years under the initial sentence, Junqueras had hoped the criminal code reform would allow him and several colleagues who have also been barred to run in the next Catalan election, currently scheduled for 2025. It is still unclear whether that will be possible.

The political opposition has framed this reform, like the 2021 pardons, as yet another instance of Sánchez indulging Catalan nationalist demands in order to maintain the parliamentary support of ERC, which he needs to govern. The conservative Popular Party’s claim that he has rolled out “the red carpet” for Puigdemont may be wide of the mark, but the changes to the criminal code have handed the parties on the right a new round of ammunition with which to fire up unionist outrage across Spain.

With municipal and regional elections in May, followed by a general election by December, this is a crucial year in Spanish politics. Sánchez, therefore, is hoping that his reform and its possible repercussions will have faded well into the background by the spring.