Does the report pave the way for amnesty for Puigdemont?

MadridThe opinion of the Advocate General of the European Union does not imply any final decision.But it is a good indicator for the Spanish government and the Catalan separatists regarding a favorable ruling from the Court of Justice of the European Union. Although not binding, the fact that the Advocate General considers that the extinction of criminal liability does not affect the financial interests of the EU and that it is also possible to grant amnesty to terrorists is an endorsement of the work carried out by the multinational majority in Congress. But let's take it step by step: how does this translate into specific cases? How does it affect former president Carles Puigdemont? And the former political prisoners led by Oriol Junqueras?

It's important to keep in mind that the Advocate General's opinion has several effects, both direct and indirect. First, there are the cases explicitly related to the preliminary rulings being heard by the Court of Justice of the European Union, namely the Court of Auditors case and the CDR case; and then there are those cases in which, although nothing was at stake this Thursday, the Advocate General's report is still crucial. This is the case of former president Carles Puigdemont and the other leaders of the independence movement.

Direct effects

Dean Spielmann, Advocate General of the CJEU, has issued an opinion on the questions posed to him by the Court of Auditors in the case concerning accounting liability related to the October 1st referendum and by the National Court in the terrorism investigation against the Committees for the Defense of the Republic (CDRs). Both courts argued that not applying the amnesty could be contrary to EU law. In both cases, the Advocate General, pending the Court's final decision, believes that there is no impact on European financial interests and that the law already sufficiently defines the cases of terrorism eligible for amnesty. This implies that the extinction of criminal liability in these cases should not be delayed. Or at least, they cannot use European opinion as an excuse for not doing so. However, the Spanish courts can still use the EU Advocate General's objection regarding the two-month deadline for applying the law to delay their decision. At this point, it essentially states that judges must be allowed time to decide, that there must be an adversarial process between the parties, and that the outcome cannot be predetermined out of respect for the right to effective judicial protection.

Indirect effects

And what is the significance of the EU's legal advisor's opinion for Puigdemont? Although it doesn't directly address his case, it does refute the argument that the misuse of funds related to the October 1st referendum is not eligible for amnesty because it affected the Union's financial interests. It's worth recalling that one of the Court of Auditors' arguments was that if Catalonia had become independent, European interests would have been harmed because Spain's contributions to the EU would have been reduced. This is an argument also used by the Supreme Court in its July 2024 ruling to reject amnesty for the leaders of the Catalan independence movement. "This was evidenced during the trial, and the prosecution was unable to demonstrate the impact on European funds," explains lawyer Xavier Melero, who represented former Catalan minister Joaquim Forn in the trial. He also adds that the potential impact on the EU's economic interests cannot be justified based on a hypothetical Catalan independence.

The Advocate General of the CJEU makes precisely this argument, but does not address another one that the Supreme Court also uses to avoid applying the law to the pro-independence leaders of the Catalan independence movement: that of personal enrichment. What the investigating judge, Pablo Llarena, asserts is that the amnesty cannot be applied to Puigdemont because he interprets that there was a personal benefit on October 1st. Not because the pro-independence leaders pocketed public money, but because they saved their own resources (in order to use public funds) to hold the referendum. "That doesn't close the case," notes criminal lawyer Xavier Melero.

Thus, the Supreme Court could still cling to this point to continue not applying the amnesty to former President Puigdemont and former Vice President Oriol Junqueras with the rest of the pro-independence leaders, at least until the Constitutional Court rules on the appeal for protection of fundamental rights, which it must address. The CJEU also has another pending case that it could take up, but which for the moment remains on hold: the October 1st embezzlement case affecting the undergovernment of 2017 and that was raised by the High Court of Justice of Catalonia.