Amnesty: Luxembourg speaks, Madrid decides

The Court of Justice of the European Union has ended up saying what, in reality, we already knew. Not because the answer was predictable or desired from a political perspective, but because any minimally rigorous reading of Union law made it very difficult to argue that the amnesty law violated the European principles that some invoked with a conviction that was more ideological than legal. The question is not, therefore, what Luxembourg has said, but why some Spanish courts decided to ask it what they already knew it would answer.When the Court of Auditors and the National Court raised their preliminary questions, they were not faced with a genuine interpretative doubt, because there was no legal uncertainty of sufficient magnitude to justify transferring the decision to the ECJ. There was, above all, a desire to gain time. To delay the effectiveness of a law approved by the democratic legislator and to keep alive a confrontation that had ceased to be legal for years and had essentially become political.This is, probably, one of the great institutional anomalies of the last decade. The government of Mariano Rajoy decided to subcontract to the courts the response to an essentially political issue. In any mature rule of law, judges guarantee the rules of the game, but they do not replace those who have the democratic legitimacy to resolve political conflicts.

In Spain, on the other hand, it has been ten years since the courts have been setting the political agenda. It happened during the independence process and continues to happen today in a battle to undermine the stability of Pedro Sánchez's government. Judicial rulings, investigations, interlocutory orders, and appeals have become central pieces of political confrontation. A situation that erodes trust in both politics and justice.The CJEU's ruling passes the ball back to the Spanish courts. The Constitutional Court will have to rule on the appeals for protection filed against the interpretation that the Supreme Court has made of the crime of embezzlement. An extraordinarily forced interpretation that has allowed Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa to remain disqualified and Carles Puigdemont, Lluís Puig and Toni Comín in exile, despite the explicit and majority will of the legislator to include these cases within the scope of application of the amnesty.From a strictly legal perspective, it would be reasonable to expect that courts would end up applying the law in accordance with an interpretation consistent with its text, its purpose, and now also with the criteria established by the CJEU. This is what any jurist would expect in a system that functions with institutional normality. The problem is that the unusual precedents we have invite us to maintain a degree of prudence.

The Supreme Court has already repeatedly shown that it is willing to push legal categories to such original limits that they are legally absurd when it considers that there are higher interests at stake that they believe they must defend. Interpretations of embezzlement are a particularly eloquent example of this. It is difficult to find a strictly legal explanation for certain rulings when they contradict not only the express will of the legislator, but also the most elementary interpretive criteria of criminal law.During these years, Manuel Marchena, Pablo Llarena, and other Supreme Court magistrates have assumed a political prominence that exceeds the role judges play in a constitutional state. They have acted as guardians of national essences, as if their function were to correct decisions made by democratic institutions when these did not align with their conception of the general interest. It is not their role to save the country. It is their role to apply the law.This case, therefore, is not over yet. The ECJ's ruling removes one of the main arguments used against the amnesty, but it does not remove the ability of some judicial actors to prolong the conflict. And it is not difficult to imagine what horizon some are hoping for: to resist until a change in political majorities, with the Popular Party and Vox in government, allows them to undo through legislative means what they have not been able to prevent in the courts.