The former president of Generalitat of Carles Puigdemont, dismissed in early morning of Saturday by government in application of article 155 of Constitution, after Declaration of Independence in autonomous Parliament, is still presented to world, with Help from TV3, as head of Catalan executive. In speech aired by Regional television on Saturday afternoon, recorded on steps of old Hospital of Santa Catalina de Girona, home of Generalitat in that city, Puigdemont was placed behind a lectern with coat of arms of Catalonia. Behind him, Senyera and flag of European Union.Learn More
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This staging, clearly institutional, along with ambiguous content of discourse, in which he called a "democratic opposition" to "application of article 155" and implied that he maintains his intention to remain in office — "in a democratic society y are" The parliaments who elect or stop presidents, he said, raised speculations about wher Puigdemont could be incurring a crime of usurping functions. The Penal code, in article 402, punishes with sentences of one to three years of imprisonment to "which illegitimately he acts own of an authority or public official attributed official character".
Puigdemont has before it a complicated penal horizon. It is investigated in Superior Court of Justice of Catalonia for disobedience, prevarication and embezzlement of flows by illegal referendum of self-determination of last October 1. The prosecutor's Office is planning to present on Monday in Supreme Court a rebellion-criminal offense with up to 30 years in prison-after declaration of independence last Friday. However, all actions carried out by independence leaders – secret ballot in urn of DUI resolution, calls to civility and "peaceful" mobilization or camouflage of logistics of referendum and its payments-have been directed , with little success, to avoid incurring criminal responsibilities.
The movements given by Puigdemont and his sellers after publication in BOE of his cessation follow this pattern of acting with one eye on street and anor in Penal code. On this first weekend as a common citizen, Puigdemont flirts and borders crime of usurping functions, but, according to various sources consulted, has not incurred it.Exclusive acts of Office
Puigdemont, with his speech, his liturgy, and with support of TV3 that presented it, once ceased, as "President of Generalitat" has been attributed an official character. And re is no doubt that he did "illegitimately", that is, lacking habilitation after being removed. However, third element of crime is missing. The key is in expression "acts of an authority" in article 402 of Penal code. According to jurisprudence, in order for deceit or fiction of legitimacy to be criminal, it is not enough for usurper of authority to carry out any act, but only those "that he attributes m exclusively by legal system", as expressed by Emeritus magistrate of Supreme Carlos Granados in a paper on crimes of usurping functions and intrusion.
The "own acts" of president of Generalitat and his directors are collected, among or rules, in Statute of Autonomy of Catalonia, autonomous law of presidency of Generalitat and government. The statute attributes to president "enact laws, decrees laws and legislative decrees of Catalonia and order its publication", "order publication of appointments of institutional positions of state in Catalonia" and "request "Collaboration with State authorities exercising public functions in Catalonia". None of it has done, at least for now, Puigdemont.
The Presidential Act develops se exclusive competencies of which it would have enjoyed Puigdemont if it had not been dismissed. These include dissolution of Parlament, call for elections, appointment of members of Council of statutory guarantees, or request convening of an extraordinary session of Parlament. If Puigdemont were again impersonating president of Generalitat to carry out se regulated acts, even if y did not succeed, crime would have been consummated, according to jurisprudence.The office, ' Risen '
To avoid crime, note with text of speech of Puigdemont was sent from an alleged office of President. This organism was abolished via 155 in same BOE in which Puigdemont was dismissed. If it had been sent with letterhead of an agency of Generalitat that retained its validity, owners or managers of that department possibly would have incurred in responsibilities. To avoid it, and to maintain appearance of officiality, one opted for deception of resurrecting an organism eliminated.
Anor sealer who bordered usurpation, but also without incurring it, was exadvisor of territory Josep Rull. On Saturday morning, after destitution, wrote on Twitter: "Yesterday [by Friday], we awarded ten works of improvement of road network worth more than 9.5 million euros", and closed tweet with label "we follow." Although in social network continues to be presented as Conseller, spoke on behalf of Government and used an expression-"we follow"-which implies that continues in office, Rull took great care to make clear that award was when y were still active. If he had granted works after cessation, crime would be inevitable.
This Sunday, Rull has also come, posing as a conseller, to celebration of centenary of arrival of railway to Sant Cugat del Vallès (Barcelona), where he has pronounced a speech. This also does not imply a usurpation of functions: it is simply an imposture consented by organizers of Act, not a crime, according to criteria of Supreme Court.
The destitute members of government have already lost escort provided by Mossos D'Esquadra. If tomorrow, first working day after cessation, Puigdemont, former vice-president Oriol Junqueras, who also does not comply with his dismissal, or councillors were tempted to occupy office of Palau de la Generalitat or councils of which no longer holders Nor is it clear that y incurred encroachment – use of Office is not an exclusive act. However, y should first overcome security services y already know have already been stopped and that, in compliance with law, y should prevent m from accessing m.