In Spain today, it is not a crime for a parliament to declare secession

Carlos Dominguez Luis *. 

Reading time  4 min.

November 11, 2015. 

He could see coming. The Catalan Parliament has finally approved the sovereignist declaration promoted by Junts Pel Sí and the CUP, which seeks to make possible the "process of democratic disconnection" of Spain.

We are, wherever we look, at a genuine declaration of independence , in which it is made clear that, from this moment on, no decisions will be taken by the institutions of the Spanish State, Constitutional Court ", organ in which the Government will focus its reaction strategy in the face of such a serious challenge.

The State, unfortunately, does not have many more ways to defend itself.  The promoters of the independence declaration know this and, perhaps because of this, they have launched their order with more impudence. Aware that the penal channel - undoubtedly the most feared - is unfeasible.

Although shocking,  the Penal Code remains on the margins of the current problems and challenges that Spain has raised  against those who dedicate the political effort to seek the liquidation of the State and its organization, democratically approved by the Spanish in 1978.

In today's Spain, where driving at excessive speed may be a crime, it is not, however, that an autonomous Parliament declares secession or independence of its territory. The surprising thing is that it was always a crime. But today it is not.

This declaration of independence, which we have witnessed, is not, of course, a crime of treason, as our present Penal Code links the commission of this crime with cases of war between Spain and an enemy power. All references to seditious and separatist movements have been erased from their text, based, according to some experts, that they contemplated cases unimaginable in practice. It is a bizarre argument, since the Penal Code continues to envisage as an offense a very improbable conduct in practice: that a Spaniard induces a foreign power to declare war on Spain or to conclude with it for the same purpose.

Nor is it a crime of sedition , since a declaration of independence by a Legislative Assembly or an autonomous Government, although it severely breaks the constitutional order and the unity of Spain, does not in itself affect the public order, nor does it involve any uprising in the form of tumult , elements, the latter, on which the current regulation of this crime is based.

It is hardly possible to speak of a crime of rebellion , since our Penal Code imposes, in order to consider the crime to have been committed, the existence of a public and violent uprising, so that it leaves behind it, as contemplated, common sense, on the other hand, easily labeled as acts of rebellion.

We said earlier that this has not always been so. In the Penal Code of 1932 - that of the Second Republic - a declaration of independence as analyzed was constitutive of a crime of rebellion. The leftist governments of that period were quite clear that the unity of Spain should be safeguarded at all costs, including by criminal means. Any attack on the integrity of Spain was considered a crime of rebellion. In 1981, an already democratic Parliament reformed this type of crime and, as in the Second Republic, sanctioned any attack against the integrity of the Spanish nation, regardless of whether or not it took place through violent uprising.

In sum, the proclamation or declaration of independence was before the democratic regime, and remained until 1995 (with the famous Belloch Code), a crime of rebellion against the constitutional order. Today it is not. No one in Spain has the impression that this may be so, but it is.

On the other hand, let us bear in mind that,  in our current penal system, the authorities' disobedience to judgments and judicial decisions surprisingly does not constitute a crime against the State Institutions and against the Ddvision of powers.  Such disobedience is treated as an offense against the Public Administration, that is, as if such conduct would affect the proper functioning of "administrative services" and not the "constitutional order of the division of powers".

To be more specific,  disobeying the courts that reinstate the law and declare the ineffectiveness of a proclaimed territorial independence is, today, a crime against the Public Administration, punished with an economic penalty of fine and another of disqualification . No more no less.

Let's go back to the beginning. What happened yesterday was coming. Maybe he had seen himself come here many years ago. It is possible that the State has overflowed naivety and improvisation.

It is only now to wait for the defensive routes to be implemented to be successful as soon as possible. And that the important waterways that present our current legal system are plugged.

* Lawyer of the State and Corresponding Academician of the Royal Academy of Jurisprudence and Legislation