Amnesty: 'game over'

The Spanish legislature will end more or less as it began: debating the amnesty law. But while Pedro Sánchez has long since assumed the political costs, it seems the judiciary still has outstanding bills and it is not clear whether it will want to collect them or file them away. Indeed, the law of criminal oblivion, emphatically validated on Thursday by the Court of Justice of the European Union (CJEU), has faced the hostility of the political and media right from the start, but above all from the judicial right, wounded in its self-esteem (and in its patriotism) by what is seen, even before Parliament, the only body with direct democratic legitimacy, decided to annul the severe penalties imposed by a handful of modern Torquemadas on the instigators of the Procés. Undoubtedly, the law has experienced many political obstacles, such as the mines laid in the Senate by the PP majority, the request for dispensable consultative reports, or the intervention of the Venice Commission. But it has also had to overcome the raising of prejudicial questions before the Constitutional Court (TC) — at the request of the second chamber of the Supreme Court of Marchena and Llarena — and before the CJEU — in this case, by the National Court, which is trying the CDRs for terrorism (!), and by the Court of Auditors, which is settling the accounting responsibility for the 9-N of dozens of high-ranking officials —, under the pretext that there were doubts about the law's fit within the Constitution or European law.First, it was the Constitutional Court that reaffirmed the full constitutionality of the law in about twenty rulings derived from appeals from all the autonomous communities governed by the PP and even from the ineffable García-Page. And now it is the CJEU that has ruled in two judgments on the unequivocal adequacy of the amnesty to EU law, recognizing that it has served to reduce tension and that it has acted as a "tool for normalization", as the preamble of the norm mentioned. This fundamental argument reaffirms what the court's advocate general, Dean Spielmann, expressed at the time, who dismissed it as an "auto-amnesty" arising from a political trick. Furthermore, the Court of Luxembourg does not object to accounting responsibility demanded by the Court of Auditors being amnestied, because, as is logical, an ephemeral "disconnection" of Catalonia could not affect the financial interests of the EU, and declares that the law complies with the standards of the European Court of Human Rights by expressly excluding serious crimes and the violation of fundamental rights from its benefits. Game over.

However, judgments are not directly executable, but interpretive. Their application corresponds to each judicial body. The law provides a specific procedure to declare criminal liability extinguished through an incident in the sentence execution phase that must end with an order stating that criminal liability is extinguished, that precautionary measures are lifted, and that records are canceled, after hearing all parties. However, the law does not provide a deadline for this procedure, although it must be understood that it is the two months provided for issuing the final resolution. From here, then, three scenarios open up: one, that the process is sought to be prolonged, playing with the timing of disqualifications now that an electoral cycle is approaching. Let's remember that in October 2025, the TC asked the Supreme Court to dismiss the public disorder case against some protesters in Girona, and the Supreme Court has not yet made a move. Another possibility is that the Supreme Court raises a preliminary question to the CJEU, trying to "scrape" to make it clear that one thing is that the financial interests of the EU are not affected, but that the decision to exclude embezzlement - because it sees personal enrichment - is its own, a fact that the dissenting vote of the sentence of the Procés already called fiction and an abstraction. In this case, at least, Llarena would have no choice but to lift the arrest warrants. Finally, it may also be that the courts disregard the CJEU, as in December 2019, when the CJEU recognized the immunity of MEP Oriol Junqueras and Marchena said that this had been overcome by the holding of the Procés trial.It is difficult to think that the Supreme Court will challenge the Grand Chamber of the ECJ and depart from the principle of primacy of European law. But it is not so difficult that it wants to maintain the tug-of-war with the Constitutional Court with the support of the usual media chorus when the TC has resolved the seven pending appeals for protection. We will see. So far, the TC has avoided a head-on collision with the Supreme Court: it did not dare to withdraw the arrest warrant for Puigdemont once the constitutionality of the law was clear. Nor do I think it will dare to apply the coercive measures provided for in its law since 2015 to the Supreme Court, and which it did apply to the Catalan authorities. And this, despite the fact that the president of the high court, Conde-Pumpido, has said that all public powers are obliged to comply with its resolutions.