Keys to the reform of the Penal Code: what is modified and who can be affected

Sedition, it all started with you. The political parties are speeding up the negotiations to approve in Congress a reform of the Penal Code that began by proposing the reform of the crime of sedition but which will include, through amendments, many other issues.

From embezzlement to the election of the Constitutional Court judges, these are the keys to the changes that are going to be made.

What is intended to change?

The proposal of PSOE and Unidas Podemos is to repeal it and replace it with an aggravated modality of the crime of public disorder.

In practice, this means a reduction in the sentences for this crime that would go from 15 years to between six and five.

The parties that make up the government coalition assure that with this proposal this type of crime is approved in the rest of European countries, where this figure does not exist and where it is punishable with penalties lower than that of the current Spanish Penal Code.

As announced by the leader of Unidas Podemos in Congress, Jaume Asens, the coalition partners have agreed that the modification of article 557 bis of the Criminal Code with the creation of the crime of public disorder does not serve as an excuse to punish peaceful social protest.

Thus, this type will be applied only in the case of violence and intimidation.

With the current type, it refers generically, within the type on infractions for alteration of public coexistence, to the fact that it will be punished with prison terms when public coexistence is altered in demonstrations or meetings.

The crime of embezzlement

The proposal is based on ERC, which proposes sentences of up to eight years in prison for those who profit through embezzlement and up to three years for those who do not profit, but do allocate public funds for their own benefit.

In this way, it would return to the model prior to the reform carried out by the PP in 2015 of the Criminal Code and which removed the differentiation between those who profit and those who do not.

A reform that has been criticized by the Defense Minister, Margarita Robles, a training judge, who believes that those who benefit economically and those who do not should not be punished equally.

The text of the ERC amendment states that “the authority or public official who, without the intention of appropriating it, allocates to private uses and unrelated to the public function, the public patrimony placed in his charge by reason of his functions or on the occasion of the same, will incur a prison sentence of six months to three years, and suspension from employment or public office from one to four years.”

A new crime of illicit enrichment

This modification of the Criminal Code is also at the expense of PSOE and Unidas Podemos, which will present an amendment so that public authorities are obliged to justify an enrichment of more than 250,000 euros.

According to what Cadena SER has advanceda new point of the articles will be created, 438 bis, which establishes that, for a period of up to five years after the performance of the position, the authority “that has obtained an increase in assets or a cancellation of obligations or debts for a value greater than 250,000 euros with respect to their accredited income” will be “punished with prison terms of six to three years.”

In addition, a fine of as much as triple the benefit obtained would be applied, at the same time that special disqualification for public employment or office and for the exercise of passive suffrage for a period of between two to seven years is foreseen. This last measure would be imposed in the event that it “openly refused to comply with the requirements of the competent bodies aimed at verifying its justification.”

The election of the judges of the TC

Another Government amendment to the bill to reform sedition that aims to put an end once and for all to the blockade in the election of the two magistrates of the Constitutional Court that correspond to the expired General Council of the Judiciary, whose conservative majority blocks the Agreement for months.

Faced with this immobility position of the members elected by the PP, the Government has decided to take action on the matter and end the need for a three-fifths majority in this body to elect the Constitutional magistrates.

as anticipated Eldiario, the modification will include a new wording of article 599.1.1ª of the Law of the Judiciary so that within a period of five working days the members of the Council “can propose to the presidency candidates for magistrate of the Constitutional Court”. In this way, each member may present a maximum of one candidate and the President of the Council will be obliged within a period of three business days “to convene an extraordinary plenary session to proceed with the election of the two magistrates”.

This plenary session, according to the amendment, must be held “within a maximum of three business days from its convocation.” The vote that comes out of that plenary session will be by simple majority and not by three-fifths, as up to now.

To avoid new blockades, the amendment contemplates that in the event that this mandate is breached, responsibilities “of all kinds, including criminal” will be incurred. According to Eldiariothe members who intend to persist in the blockade could be charged with the crimes of disobedience or omission of prevarication.

Crimes against workers’ rights

The Government will also take advantage of the sedition process to modify article 311 of the Penal Code to punish non-compliance with labor legislation.

In this way, those who “impose illegal conditions under formulas unrelated to their employment contract” will be punished with prison terms of six months to six years.

With this modification, the Government intends to punish home delivery companies that violate the rights of workers.

Despite the approval of the rider law, these companies continue to break the law, but in doing so they only incur administrative and not criminal offenses. This amendment aims to toughen the punishment so that the regulations are complied with.

Who will be affected by the reforms?

There are a few proper names that could be affected, for better or for worse, by the reforms of the Penal Code.

One of them, the ERC leader, Oriol Junqueras, whose prison sentence was commuted with government pardons but not the disqualification, which in his case was until July 2031.

If the reform proposed by ERC of the crime of embezzlement is approved, which lowers the punishment of disqualification, in such a way that from now on it is from one to four years, the punishment for Junqueras would be a maximum of four years.

Since the sentence began to count in July 2018, this would open the door for him to run for the 2023 generals or the 2025 Catalans.

Oriol Junqueras, ERC leader, last November.

Europa Press News via Getty Images

Another is José Antonio Griñán, former Andalusian president sentenced to six years in prison for embezzlement in the ‘ERE case’.

Although in recent days from the right it was assured that the PSOE sought to benefit the former socialist leader with this reform, the truth is that with the ERC proposal he could not benefit from a reduction in sentences, because there would have been an enrichment to third parties through a client network.

Jose Antonio Grinan.
Jose Antonio Grinan.


In fact, the position of Unidas Podemos in this matter is clear: they will support the proposal as long as it does not benefit those accused and convicted of corruption.

The creation of the crime of illicit enrichment would very clearly affect the mayoress of Marbella, angeles munozwhose assets amount to a whopping 12 million euros.

Ángeles Muñoz with José María Aznar, in Marbella.
Ángeles Muñoz with José María Aznar, in Marbella.

Alvaro Cabrera via Getty Images

The reform seeks that public officials must justify enrichment from 250,000 euros. Many thousands of euros that Muñoz will have to explain, whose assets are posing a clear problem for Juanma Moreno, Andalusian president.

The non-justification of this patrimony entails jail sentences of up to three years.

What does the opposition say?

The right wing has exploded against the government for this series of reforms proposed by the coalition parties.

From the PP, its leader, Alberto Núñez Feijóo, accuses the President of the Government, Pedro Sánchez, of “increasing his attacks on the institutions and our Rule of Law” through an “authoritarian drift”.

For this reason, it has announced unconstitutionality appeals, although without clarifying against which measures.

The spokesperson in Congress and general secretary of the PP, Cuca Gamarra, has spoken of “marketing of the law in Parliament” by the Executive in order to remain in power.

In Gamarra’s opinion, “they reform crimes at the request of those who have committed them to go unpunished.” “The problem is not that his partners demand it of him, but that Sánchez gives in,” he added.

The (still) leader of Ciudadanos, Inés Arrimadas, has urged the PP to do “something more than post a tweet” and say that “if that’s when it governs” it will take action. “I think there are democratic mechanisms,” she added, referring to a possible motion of no confidence that, with the current parliamentary arithmetic, would not go ahead.

Something that Arrimadas has recognized, assuring that it would serve “so that Sánchez has a higher electoral cost than he is having.”

Precisely the extreme right has claimed to be looking for a “neutral candidate” for a motion of no confidence. In response to this initiative, the Ciudadanos leader believes that the one who has to do it is Feijóo.

Arrimadas has accused the President of the Government of being “a dictator’s apprentice”, of carrying out these changes “on the sly” and of being “giving a self-coup to Spanish democracy”.

Source: HuffPost Spain for Athena2 by

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