Nicolás García Rivas (Madrid, 1959) is a Professor of Criminal Law at the University of Castilla-La Mancha and a member of the Grupo de Estudios de Política Criminal [Criminal Policy Studies Group] which is preparing its proposals for changes to the laws on rebellion and sedition in Spain. Yesterday he visited the University of Barcelona to take part in a seminar on the outcome of the trial against the Catalan independence bid.
The Spanish government has initiated talks on changes to the laws governing rebellion and sedition. What should they focus on?
I’ve been saying since at least 2007 that the crime of sedition ought to be abolished. In the nineteenth century it was seen as a crime which could apply in times of war. As a result, it wasn’t seen as a mere public order offence. When changes were made to the Criminal Code in 1995 and rebellion became a crime against the Constitution, the function of sedition ceased to make sense, unless the aim is to punish dissent. What would make more sense would be to add an aggravating factor to the crime of “assault against authority” when it is committed collectively. And as for rebellion, it probably needs to be modified, perhaps by clarifying that violence has to be physical and not spiritual, which is what the verdict in the trial against the Catalan leaders seems to suggest. They should also consider making armed insurrection an aggravating factor.
Someone could say that these are impromptu reforms prompted by the new dialogue between the PSOE and ERC.
The changes should have been made a long time ago. But since these crimes are never used, it’s only when the day comes when someone actually decides to use them, that we find out they need changing. Something similar happened with abuse and rape. Until the Manada trial (1), it seemed that no one had realized that there were two separate crimes against sexual freedom.
How would these changes benefit those who’ve already been convicted by the Supreme Court?
The principle of favourable retroactivity would apply. If sedition were to be abolished, they would be acquitted ex post facto. What I propose is not quite the same, however, since I believe that the sentences that were handed down in October 2019 would need to fit into the new law, and maybe instead of 13 years in prison, they’d get 4. It wouldn’t mean an acquittal, but a much-reduced sentence.
Is making changes to the Criminal Code more effective than a reprieve or amnesty in this case?
Granting a reprieve or amnesty are both political decisions. From a criminal policy point of view, reforming the law with respect to a crime looks much better: no one is politically acquitted. But it’s a political matter.
Why doesn’t the crime of sedition exist in most European countries?
It’s because sedition is a crime which is typical of an authoritarian state. There’s no point in punishing with stiff prison sentences a group of people who are trying to stop a court order from being carried out. This doesn’t make much sense in the rest of Europe.
(1) La Manada (“wolf pack”) rape case began with the gang rape of an 18-year-old woman in Pamplona, drawing intense public scrutiny and calling into question the definition of rape under Spanish law.