Redefining violence by Pablo Llarena, Supreme Court judge


Supreme Court Ruling, 23 March 2018, D. Pablo Llarena, pages 56-58

SPECIAL CASE/20907/2017

 The State, attending diverse actors (especially of international character, but also of civil society) that act as mediators before the State. The support of mobilized civil society could also constitute a decisive factor for this objective.

 LEGAL BASIS

FIRST. -1. The events described above are liable to interpretation as an offence of rebellion of article 472.5, 7th and consistent with the Penal Code.

Within the “Offences against the Constitution”, the indicated precept will find guilty of rebellion those who “rise up violently and publicly to [among other purposes] declare the independence of a part of the national territory or to disaffect from obedience to the government any armed force.”

The offence of rebellion attempts to preserve the essential principles of democratic coexistence, with respect to those attacks that might deeply harm the most important structural elements of our political organization, such as: the validity of the rules governing the legal system incorporated in the constitutional text; the democratic and electoral exercise of the sovereignty of the Spanish people; the normal procedures of the government of the nation or the autonomous communities in relation to the functioning of the institution of the monarchy or of the legislative or executive branch; defending a defence structure fully subject to the rule of law, by sanctioning anyone disaffecting from obedience to the government any armed force; or the integrity and indivisibility of the national territory, proclaimed in article 2 of the Spanish Constitution.

The transcendence of the legal good protected by the law justifies the advancement of its protection, being drafted as an offence of mere acts whose consummation do not require the result covered by the offence, that is, to achieve or to declare effectively the independence of the part of the territory corresponding to the autonomous community of Catalonia in this case, but rather exceeds its material nature with the mere realization of the conduct consisting of rising up violently and publicly, provided that the behaviour is to achieve the result that orients it and that this is one that the penal precept contemplates.

2. Our legislator, by including in the description of the offence the adverb that conditions the action (violently), avoids incorporating in the offence the substantive content which is suggested. He is acting violently whomever does so in a violent way, which does not necessarily mean the same as acting with violence.

The jurisprudence of this courtroom characterizes violence by its physical nature, its personal manifestation and its suitability. The physical character implies that the exercise of violence requires the use of force for real and present damage, in clear contrast to the intimidation or the exercise of any psychological pressure by means of the suggestion of potential damage occurring. Its personal or subjective manifestation assumes that in violence the receiver of that force is a person, even if material things are also possible recipients of physical force. Finally, an adequacy or sufficiency is demanded which resides in the force having sufficient intensity to be able to bend the will of the one against whom it is directed and covers, therefore, an ability to harm the legal good that is protected. However, as concerns acting violently, even when violence implies the use of a force and physical impetus which is inconsistent with psychological force, i.e. it lacks the subjective element inherent in violence, it is possible for that violence to be projected onto material things.

In any event, the facts that have been reported as occurring on September 20, 2017 before the headquarters of the Ministry of Economy and Finance, reflect all the requirements that have been identified for a violent act, and even for violence. It has been described that there was a crowd of 60,000 people opposed to the presence and actions of police forces, and the events that occurred there show that the crowd acted as a force of multitude that, in addition to destroying police vehicles, attacked personal property through the throwing of objects, or preventing the harassed officials from exercising their freedom of action and movement during the long hours that the siege lasted. In a way, it can be understood that the siege was of an exclusively intimidating nature, because if the intimidation limits the decision-making capacity of the passive subject, the deeds presented here determine the inherent effect of violence, that is, an actual restriction of the capacity to act as a consequence of the use of force, as would happen in a hypothetical taking of hostages by shooting in the air.

Furthermore, the events of 20th of September 2017 are not considered in this resolution strictly because of their nature, but because of the way in which they reflect that there was a risk that future mobilizations would lead to violence in order to achieve independence. And it is clear that what happened on 20th of September, although it was not the reflection of a violence that was devised from the outset as an instrument for the achievement of independence (which this resolution does not exclude), it certainly allowed all those involved in the process to represent the risk that future mobilizations could explode into episodes of great harm and damage to society. After years of promoting the collective desire for independence among broad sectors of the population; after having tried mass mobilizations comprising hundreds of thousands of followers; having convinced their followers that they had a legitimacy for independence that they knew to be constitutionally impossible; and knowing the serious events that had resulted from the public mobilization of the 20th of September; to impel all of them to confront the widespread deployment of law enforcement agencies of the state in possession of the court order to prevent the 1-O vote and to defend the counting of the vote, entailing not only an acceptance of the clearly present risk of violence, but also directly encouraging a mass of citizens to forcibly breach attempts at containment that may come from the state, as finally happened on the day of the vote.


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