Countdown to Puigdemont's return: 29-N does not alter the Constitutional Court's plans

MadridTuesday, October 6th, is a date marked in red on the calendar of the leaders of the 'Procés'. The Constitutional Court must issue the ruling that forces the Supreme Court to grant amnesty for embezzlement, which will allow Carles Puigdemont, Toni Comín, and Lluís Puig to return to freedom in Catalonia and for Oriol Junqueras, Jordi Turull, Dolors Bassa, and Raül Romeva to be able to run in the elections. The roadmap drawn up days ago will not change despite Pedro Sánchez's decision to bring forward the general elections to November 29th. “It has nothing to do with it,” replies an influential voice from the high court consulted by ARA. They agree from the Constitutional Court, where they maintained shortly after the announcement by the Spanish president that the plenary session's agenda remained unchanged.

Therefore, the first ruling contradicting the Supreme Court's defiance regarding the amnesty will arrive on the same day that the Official State Gazette publishes the election call. Once all the magistrates have signed it, and without needing to wait for the conservatives to formulate their dissenting opinions against the decision of the progressive majority, the Constitutional Court will communicate it immediately – it could be this very Tuesday – to Manuel Marchena, who will have to make a move to grant amnesty to those convicted in the 'Procés' trial. In parallel, once the first pronouncement has arrived, Pablo Llarena has opened up to lifting the arrest warrants for Puigdemont, Puig, and Comín, who will be able to go to Madrid to collect their MEP credentials after the Central Electoral Board left their seat vacant in July 2024.

In fact, the ruling will directly order the Supreme Court to issue a new court order that "declares amnestied" the crime of embezzlement in a "preferential and urgent" manner. Last week, the president of the Constitutional Court, Cándido Conde-Pumpido, argued that it is necessary for the conclusion to be "clear and precise" for the Supreme Court to apply it.

At first, it was expected that there would be two proposals on the table: the draft by conservative José María Macías regarding Jordi Turull's appeal and the draft by Cándido Conde-Pumpido regarding Dolors Bassa's appeal. However, as ARA has learned, Macías has withdrawn his text and, therefore, only the draft prepared by the president of the Constitutional Court will be submitted for a vote. Macías had to make a second version after the majority rejected his first proposal, which agreed with the Supreme Court on the exclusion of embezzlement, but did not include the explicit exhortation to the Supreme Court to apply the amnesty that the president of the Constitutional Court did include. The progressives wanted to make some retouches to the text to give it the green light. Finally, Dolors Bassa's ruling will be the one that sets the doctrine to be followed.

Other TC decisions on the eve of the elections

It will not be the first time that the Constitutional Court pronounces itself on a matter with political repercussions before an election. In July 2023, for example, before the 23-J elections, it endorsed the ban on the demonstration of May 2, 2020, in the midst of lockdown – dismissing an appeal by the Falange – or it declared unconstitutional the priority of Basque over Spanish in the town halls of the Basque Country. In the Catalan context, in the autumn of 2019, with the November 10 elections called, it annulled the creation of the Parliament's commission of inquiry into the monarchy, suspended several points of resolutions of the Catalan chamber confirming the goal of independence, returning to censure Felipe VI or reiterating the demand for the right to self-determination and struck down the Government's Foreign Action Plan.

“It attacks head-on” the amnesty

In her appeal for amparo, to which ARA has had access, Dolors Bassa argued that the Supreme Court's interpretation of the amnesty is “forced, extensive, and contrary to the defendant” and “contravenes the spirit and purpose” of the law, as well as the “logical and common sense of the terms used by the legislator, endangering legal certainty.” Likewise, she added that Manuel Marchena's refusal “directly attacks the spirit and purpose” of the amnesty: “It dangerously enters the terrain of the legislative function, because interpreting the law so broadly entails its practical repeal,” she justified.

In fact, the draft prepared by Cándido Conde-Pumpido, also consulted by ARA, includes some of the concepts and expressions from the appeal of the former Minister of Labor, Social Affairs and Families. The Constitutional Court's conclusion will be that pardoning the embezzlement of 1-O is “the only conclusion reconcilable” with the “rules of logic and common sense” and with an interpretation of the amnesty law that “attends to” the “genesis” of the norm and its “spirit and purpose.” The text concludes that the Supreme Court made an argument that was “entirely unreasonable.”