Start of main content

A bond to be taken into account

| News | Litigation

José María Rebollo analizes the lawsuite filed by the State Prosecutor-General against the members of the former government accusing the latter of the crime of rebellion

On October 31, Central Court of Investigation no. 3 in Madrid handed down a judgement which allowed the lawsuit filed by the State Prosecutor-General against the members of the former government accusing the latter of the crime of rebellion (or, in the absence of such charges and alternatively, of sedition) and, in any event, the misappropriation of public funds. According to the Office of the Public Prosecutor, the crime of rebellion incorporates the crimes of sedition, disobedience and prevarication.

The lawsuit describes events in Catalonia between 9 November 2015, when a plenary session of Parliament approved Resolution 1/XI on the start of the political process in Catalonia following the regional elections held on 27 September 2015 by 72 votes to 63, and 28 October 2017, when the now former President appeared from the seat of the Generalitat in Girona to issue an institutional message.

In relation to the crime of rebellion described in art. 472, numerals 1, 5 and 7 of the PC, the State Prosecutor-General believes that this crime had been committed by the defendants inasmuch as their conduct had blown apart the foundations of the rule of law, resulting in one part of Spain declaring its independence.

The action described by this type of crime consists of rising up as the sublimation of a public act of violent disobedience in order to achieve one or more of the objectives described in art. 472 of the PC: the independence of part of Spain. The content, contours and scope of these two concepts (public and violent) will most certainly be the object of heated discussion, something that the Office of the Public Prosecutor, which devotes much of its legal argument to addressing a question that it appears to recognise is a controversial and thorny issue (at least implicitly), is no stranger to.

One aspect about which there appears to be little doubt is the intent of the alleged perpetrators, who have even demonstrated this intent in their appearances in public; hence the decision of the State Prosecutor-General to explain the anticipation of punishments by the State, to the point where it would seem that confirmation of the participation of said subjective party would be enough to constitute a consummated offence.

Of course, one cannot detract from the objective element, which, as we have seen, is the most problematic. Therefore, and given the need for specification, the account of the Office of the Public Prosecutor states that the violent and public uprising must be understood to have occurred as a result of a perfectly thought-out plan to disobey legitimate authority through public mobilisation and to prevent compliance with court judgements (including through violence). All of these acts were embodied in the illegal referendum of October 1.

If this were the case (and, therefore, if the epicentre of the rebellion was October 1), one could ask why the lawsuit was not filed earlier: nothing that has happened in the subsequent weeks would have significantly altered the conclusions that, even if provisional, are reached in the lawsuit.

As a secondary provision, the facts are considered to constitute the crime of sedition as described in art. 544 PC, while in the lawsuit itself they are considered a ‘small rebellion’ punishable with 10 to 15 years’ imprisonment, compared with 15 to 25 years’ imprisonment applicable for a larger rebellion (as defined by the same terminology used by the Office of the Public Prosecutor).

The last crime attributed to the parties under investigation is the misappropriation of public funds provided for in art. 432 and related provisions of the PC inasmuch as their conduct, mainly in holding the referendum, resulted in considerable public expenditure, with the whole process being firmly contrary to the resolutions of the Constitutional Court and, as a result, 'ontologically opposed to public office’.

The Office of the Public Prosecutor is also requesting a series of personal precautionary measures against all of the defendants (without specifying which ones) and which must be determined following its declaration scheduled for 2 and 3 November, where applicable, and a bond for 6,207,450 euros. This bond that has already been ordered in the Carmen Lamela judgement, a circumstance that must most certainly be taken into account.

The next few days will no doubt not only reveal the line of defence to be adopted by the defendants but also, and in particular, how personal precautionary measures will be implemented by the Office of the Public Prosecutor, and if these measures will be finally agreed, something which could constitute a new turning point in what has been described as the independence challenge.


For further information, please contact:

José María Rebollo Blasco

End of main content