Four years ago Spain’s top two political parties, the PP and the PSOE, agreed to reform the country’s criminal code and to review the crime of terrorism, among others. The changes aimed to bring Spanish law in line with EU legislation passed to combat jihadist terror crimes. However, the amendment went further than that and it effectively meant harsher penalties for that category of offences. Since then, actions that had hitherto never been characterised as terrorism have been classed as such. For instance, a public disturbance may be construed as a terrorist attack provided it is aimed at “subverting the constitutional order”.
David Aineto, a criminal law professor at the University of Barcelona, believes that “the reform meant the scope of what is regarded as a terrorist crime was expanded beyond what is reasonable”. The reform sanctioned by Mariano Rajoy and Pedro Sánchez included a longer list of crimes that could be categorised as terrorism. Whilst before 2015 terrorism was “a crime involving widespread destruction or a blaze”, nowadays serious crimes against “freedom […], financial assets, natural resources, public health, the Crown […] or being in possession of firearms, ammunition or explosives” are also regarded as terrorism, so long as the offenders were seeking to upset the constitutional order. The PP and the PSOE also agreed that if any of the aforementioned actions were intended to “eliminate or seriously alter the functions of the State’s political institutions, economic or social structures” as well as upset “public peace” in a major way, they could also be understood as an act of terror. Broadening the scope of this crime meant that it became increasingly open to interpretation. In fact, professor Aineto thinks that “the vagueness” of the code’s wording could constitute a violation of the taxativity principle, which requires that crimes be defined in such a manner that there is not much room for interpretation.
Preempting the response
Albert Pons, a sitting member of the board of the Criminal Law section of Barcelona’s Bar Association believes that the new criminal code provides “a preemptive punitive response”. If prior to 2015 a crime could not be classed as terrorism unless an attack had been committed, the new criminal code characterises as terrorism the mere action of plotting an attack. That is what the Prosecutor working in Madrid’s Audiencia Nacional court argued on Monday when they arrested nine Catalans who allegedly “possessed a great deal of material and substances regarded as precursors for making explosive devices”.
Pons thinks that having found material that might be used to build a bomb does not provide sufficient grounds to charge the detainees with a terror crime. Instead, the judicial investigation would have to determine their intent and prove that the detainees “communicated with one another” to coordinate their actions.
As a matter of fact, both experts find many similarities between Monday’s arrests and the cases of CDR activists Tamara Carrasco and Adrià Carrasco: the terror charges were dropped as the investigation of the case progressed and eventually the judge charged them with public disturbance.