“There is no rebellion; Maza is using his imagination”
MADRID – October 31, 2017 2.00 h
INTERVIEW WITH DIEGO LÓPEZ GARRIDO, EDITOR OF THE CRIME OF REBELLION IN THE SPANISH PENAL CODE BY DAVID PORTABELLA – MADRID
“There is no rebellion; Maza is using his imagination”
- “There is disobedience, but there is no prison sentence for that”
- “The proof that the prosecutor does not believe what he says is that the Jordis are in prison for sedition, and for the more serious crime of ‘rebellion’ he doesn’t ask for a prison term”
- “They were people protecting ballot boxes, not armies of “hooligans”
The Congressional Journal reads that, in 1995, Diego López Garrido, then an Izquierda Unida MP, warned that the Spanish Penal Code was “the negative image of the Constitution” and needed the utmost precision. Thus, in the reform of the code, he soon warned that the requirement of “violence” had to be set for a declaration of independence to be considered a crime of rebellion, in contrast to the suit filed by the Spanish Attorney General, José Manuel Maza.
How do you feel about the fact that Maza’s suit against Puigdemont centres on Article 472 of the Criminal Code, which you drafted as a member of the Izquierda Unida 22 years ago?
In 1995 we still had the Francoist Penal Code and, when we were debating the crime of rebellion with the Basque PNB group – Emilio Olabarria – and the Catalan group, we found that the ultimate goal of every nationalist party was to have its own state and, if we put that the mere declaration of independence by a part of the territory was a crime, this could be contrary to the spirit of the Constitution, which allows the pursuit of all aims if within the established legal framework. My proposal was to make a transactional amendment maintaining the assumption of independence, but adding that it must be attempted with violence. ‘Uprising’ is already a word that indicates violence but, just in case, we added the phrase “who rises up violently and publicly”, and immediately everyone agreed, including the PP, and subsequently passed in the General Courts. The decree stated that obvious material and physical violence were necessary. There is no crime of rebellion in what Puigdemont has done.
Is Maza’s suit a betrayal of the spirit of the one you drafted?
The problem is that the prosecutor’s office makes a very forced interpretation: to say that those in the government that called people to the take part in the referendum on October 1 knew that there would be violence… As if they had sent hooligan armies! What happened is that people were stood at the voting tables trying to prevent the police from taking the ballot boxes! To say that the declaration of the Parliament is accompanied by violence is a big stretch.
The prosecutor argues that the DUI “implicitly involves the potential use of armed force”…
This is not possible in criminal law, it cannot be. Criminal law requires special rigour and precision, because it exposes you to imprisonment. It must be very strict and you cannot resort to such imaginings without any evidence. You cannot invent things or make analogies or forced interpretations; it is just not possible in criminal law. And there is proof that not even the prosecutor himself really believes what he says: note how incongruent it is that for Jordi Sànchez and Jordi Cuixart, accused of sedition, the prosecutor’s office demands precautionary custody without bail whereas for the members of the government, for the much more serious crime of rebellion, not only does he not demand a prison, but he allows bail so they can leave. That’s completely contradictory, isn’t it?
The ambiguity with which violence is now spoken about contrasts with the 1995 debates, in which the Congress came to request the help of the Real Academia Española to ensure that the language was as accurate as possible.
Yes, yes. In the paper, I made the proposal that the text be delivered to the RAE so that it would outline the Spanish that we had to use, because it was important that a democratic Penal Code replacing the Francoist code – which had been in force since 1848, albeit adapted to the purposes of the Franco regime – be a text with the best possible wording, to avoid the typical problem of bad wording or bad Castilian. And the RAE gave us its opinion and changed a few words changed to achieve the most precise vocabulary possible.
Rebellion is very serious: needless to say, it was the crime applied to the Civil Guards and military responsible for the coup d’état of 23-F (23 February) in 1981.
Indeed, the thing is that the coup was tried in 1981 and 1982 – the Penal Code of 1995 had not yet arrived – and it was judged in accordance with the Military Penal Code and not with the Civil Penal Code, so it was the same crime, but with a different wording.
As an MP in 1995, could you have imagined that such a case would occur?
No, it was impossible to predict. To avoid misinterpretations, it did not cost us anything to add the word violence, and we did it intentionally. That is why there is no doubt that it is necessary to prove that there is violence; one cannot speak of imaginary or hypothetical violence.
Puigdemont’s lawyer, Jaume Alonso Cuevillas, maintains that there is no criminal law against a Unilateral Declaration of Independence.
True, there is no specific law. What I believe in this case is that it is a crime of disobedience and perversion, neither of which crimes carry a prison sentence.