Amnesty: the curtain falls

The Constitutional Court resolved favorably on Tuesday the first of the appeals for protection against the non-application of the amnesty law, that of former minister Dolors Bassa, arguing that the Supreme Court interpreted it in an “extensive way contrary to the spirit and purpose of the law.” This has led it to annul the interlocutory orders of July 1 and September 1, 2024, by which the Supreme Court repeatedly refused to comply with the law. The ruling is not clear, however, as these annulled resolutions not only affected Bassa but also Junqueras, Turull, and Romeva. In view of this, once the ruling is notified, the Supreme Court can do several things: hurry to study it—as judge Pablo Llarena has announced he will do—and apply it imminently to Bassa, to the four aforementioned people, or to all of them; wait for it to be published in the Official State Gazette and decide, or even wait for all pending appeals to be resolved. Before that, however, Llarena, the instructor of the exiles' case, had to leave the precautionary measures without effect and lift the national arrest warrants, even if with a weak argument and saying that he does so provisionally while waiting to examine the ruling.

It has taken more than 6 years to travel this long and steep path and achieve full indemnity for those who led the 1-O referendum. Not for nothing, in September 2020, Amnistia i Llibertat presented a bill proposal, and in March 2021, ERC, Junts, the PDCat, and the CUP presented the first bill proposal to Congress, which the bureau rejected with votes against it also from the PSOE (!). Then came the negotiations for dejudicialization: the dialogue table, Pedro Sánchez's investiture agreement, the fruits in the form of pardons, the reform of the Penal Code, and finally the amnesty law in May 2024. Many people have traveled this steep path: politicians and constitutional and criminal law experts, and many bodies such as the European Parliament, the Council of Europe, the UN, or the CJEU, which have left a record of the mismatch of the Spanish Penal Code with the criminal laws of liberal democracies, and which have evidenced the twisted and interested exegesis of the laws perpetrated by the highest exponents of the Spanish judiciary.

However, it is also the time to say that some political and legal strategies within the same independence movement trench have been on the verge of damaging this goal: when pardons and the amnesty were qualified as a betrayal of 1-O, the approval of the law was obstructed, or it was demanded that the TC issue executive sentences without waiting for the endorsement of the CJEU. It has become clear that the best strategy was to seek protection from the TC, obtain the coverage of twenty previous rulings by this court endorsing the law, and even a forceful ruling from the CJEU. This has allowed the plenary session of the high court to approve the draft sentence written by the president of the Constitutional Court, Cándido Conde-Pumpido, regarding Bassa, establishing the doctrine that must guide the Supreme Court's decisions from now on. And that the conservative magistrate José María Macías, rapporteur for Jordi Turull's sentence, had to withdraw his proposal, not only lukewarm but a Sadducean trap: he proposed returning the ball to the Supreme Court so that it would issue another sentence "respectful" of fundamental rights. It was not a technical nuance, it was a new delaying maneuver.

In short, the ruling represents a resounding response to the Supreme Court's criminal chamber's incomprehensible refusal to comply with the law: the interpretation of the crime of embezzlement should never have been twisted to the point of omitting the application of the amnesty, prolonging the criminal consequences of a sentence already severe enough in itself in a way that was as unnecessary as it was malicious, rendering illusory the penal oblivion agreed upon by the democratic legislator in order to channel the political conflict with Catalonia, just as the preamble of the law states and as the CJEU itself extensively weighed. So much so that it was not until the Supreme Court decided to refuse to apply the amnesty to embezzlement – taking delusional advantage of one of the most unnecessary exceptions of the law – that it had the brilliant idea of connecting the risk to the financial interests of the EU with the existence of a real risk to the territorial integrity of the State, something which, paradoxically, the 2019 Procés ruling labeled a "pipe dream". The ruling reproaches the Supreme Court, in addition to the convoluted thesis of personal enrichment, for the tenacity of the sentence written at the time by Manuel Marchena, "breaking the required coherence between the adopted decision and the norm that serves as its foundation and the purposes that justify the institution of the amnesty".

It is hard to think that the Supreme Court will end up accepting all this, right? But it has no other choice. Even if it is against its will, it must comply with the Constitutional Court's rulings, which have the value of res judicata and do not admit appeal. Roma locuta, causa finita. If we were to be suspicious, it is possible that Marchena and his colleagues might want to turn to the CJEU via a preliminary ruling, as the Provincial Court of Seville did with the EREs of the Junta de Andalucía, with the pretext that European justice ruled – at the request of the National Court and the Court of Auditors – only on the damage to European coffers, but not on the personal gain of the pro-independence leaders. But I believe that the Supreme Court will comply and will set aside the mischievous maneuvers to prolong the pain of those it unjustly condemned. They can always console themselves by thinking that if the TC and the CJEU have proven them wrong, God will prove them right.