Llarena again rejects Puigdemont's amnesty while awaiting the Constitutional Court
The Supreme Court magistrate argues that the CJEU ruling does not invalidate the central argument for which he refuses to apply the rule
MadridIf it were up to the Supreme Court, former president Carles Puigdemont would not be amnestied. Not even after the ruling of the Court of Justice of the European Union in which it dictated that the 1-O did not affect the financial interests of the European Union. This was proven once again this Tuesday, when the investigating magistrate of the Procés case, Pablo Llarena, again refused to withdraw the arrest warrant against the former president and apply the amnesty to him. Thus, the high court maintains its doctrine of excluding the crime of embezzlement from the rule because it interprets that Puigdemont and the rest of the exiles had a patrimonial benefit as a result of the referendum of October 2017. Why? He argues that they did not pay for it out of their own pockets and that, therefore, they saved this money from their own assets. Llarena takes this decision a few weeks before the Constitutional Court begins to discuss the appeal for protection (recurso de amparo) of the pro-independence leaders, which should foreseeably dismantle this criterion of the Supreme Court to unblock the application of the amnesty.
The forecast, therefore, is that if the Constitutional Court is clear in endorsing the arguments of the former prisoners and exiles, Llarena will be forced to modify the doctrine.
In fact, last week sources from the Supreme Court admitted that if this is the case, it will happen, and before resolving all the appeals individually. These sources indicated that they might have to rectify if the TC upholds the appeal for protection of former minister Jordi Turull –which is foreseeably the first to be discussed– with arguments that could also be applicable to Puigdemont.
In fact, the very resolution issued this Tuesday suggests that its doctrine may be modified later on. It considers that the CJEU ruling and those issued so far by the Constitutional Court endorsing the rule do not question the non-application of the amnesty to Puigdemont, but it acknowledges that these resolutions have not validated the interpretation made by the Supreme Court either. Thus, it puts the ball in the court of the Constitutional Court and the appeals for amparo. "The judgments [of the CJEU and the Constitutional Court] invoked have not rendered the interpretation of the personal benefit used in this case ineffective, but they do not constitute a specific validation of this interpretation either. The appeals for amparo have their own object and it is not appropriate to anticipate them here," it asserts.
Recognition of the CJEU ruling
Llarena dedicates 25 pages to denying amnesty following the CJEU ruling and also refuses to recuse himself from the case in favor of Catalan courts.
To begin with, he recalls that he and the criminal chamber of the Supreme Court have denied amnesty to Puigdemont and also to Toni Comín based on two arguments: that the 1-O referendum affected the financial interests of the amnesty and that the referendum provided a financial benefit to the pro-independence leaders, which is a scenario that the amnesty law itself excludes from being covered. "The economic advantage lies not in receiving the price, but in avoiding the disbursement necessary to obtain what has been decided to be acquired," he says. And he continues: "In applying this interpretation to the facts, the interlocutory order does not say that the defendants materially received public funds, but rather that they promoted the initiative and used their government powers to charge the cost to the Generalitat. That is to say, they promoted the initiative without bearing the corresponding cost with their own assets."
However, Llarena does acknowledge that the CJEU ruling forces him to modify his previous consideration of rejecting the amnesty due to the impact of the independence process on the Union's budget. "The CJEU ruling prevents maintaining this interpretation [...] the objection of the defenses is well-founded. The present decision [to deny amnesty] can no longer be supported by the hypothesis of a reduction in European revenues due to a possible independence," the interlocutory order admits.
On the other hand, Llarena also rejects the other requests from the defenses. He reaffirms that he must maintain jurisdiction even though he is no longer investigating the crime of sedition—which disappeared with the latest reform of the Penal Code—and refuses to send the case to Catalonia. His argument is that expenses related to the referendum were incurred from external bodies of the Generalitat and also in other countries.
Furthermore, he also anticipates that if there is an amnesty from the Court of Auditors in the 1-O case—which is directly affected by the CJEU ruling—it will not imply an automatic amnesty at the Supreme Court. He makes it clear that one thing is for "accounting liability to be extinguished" and for them not to have to "return the improperly spent money," and another is criminal liability.
With this resolution, therefore, it is clear that the Supreme Court will only change its position if the Constitutional Court dismantles the interpretation it makes regarding the embezzlement in the 1-O case.