Llarena returns to reject the amnesty of Puigdemont while waiting for the Constitutional

MadridIf it were up to the Supreme Court, former president Carles Puigdemont would not be granted amnesty. Not even after the ruling by the Court of Justice of the European Union, in which it stated that the 1st of October referendum did not affect the financial interests of the European Union. This was demonstrated 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. However, the tone of the interlocutory order was already different from previous ones, like someone who already knows they are reaching the end of the road. The high court maintains its doctrine of excluding the crime of embezzlement from the law because it interprets that Puigdemont and the rest of the exiles had a patrimonial benefit following the October 2017 referendum, but it also admits that this is the case while awaiting the ongoing appeals for constitutional protection (amparo) at the Constitutional Court (TC). Llarena's decision comes weeks before the TC begins to discuss the appeal for constitutional protection 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 clearly endorses the arguments of the former prisoners and exiles, Llarena will indeed modify his doctrine.

In fact, last week Supreme Court sources admitted that this could happen even before resolving all the appeals individually. These sources indicated that they might have to rectify their interpretation regarding embezzlement if the TC upholds the appeal for constitutional 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 by Llarena hints at it. He considers that the CJEU ruling and those made so far by the Constitutional Court endorsing the norm do not question the non-application of the amnesty to Puigdemont, but acknowledges that these resolutions have not validated the interpretation made by the Supreme Court either. Thus, he puts the ball in the court of the Constitutional Court and the appeals for protection. "The rulings [of the CJEU and TC] invoked have not rendered ineffective the interpretation of personal benefit used in this case, but they do not constitute a specific validation of this interpretation either. The appeals for protection have their own object and it is not appropriate to anticipate them here," he asserts.

Recognition of the CJEU ruling

Llarena dedicates 25 pages to denying the amnesty following the CJEU ruling and also refuses to recuse himself from the case in favor of courts in Catalonia.

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 October 1st referendum affected the financial interests of the European Union and that the referendum meant a financial benefit for the 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 one has decided to acquire," 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 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 defense's objection is well-founded. The present decision [to deny the amnesty] can no longer be based on the hypothesis of a reduction in European income for an eventual independence," the interlocutory order admits.

On the other hand, Llarena also rejects the other requests from the defense. 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 made from agencies outside the Generalitat and also in other countries.

Furthermore, he also anticipates that if there is an amnesty by the Court of Auditors in the October 1st 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 that "accounting liability is extinguished" and that they do not have to "return the improperly spent money," and the other is criminal liability.

With this resolution, then, it is clear that the Supreme Court will shift its position if the Constitutional Court dismantles the interpretation it makes regarding the embezzlement in the 1-O case. Or that is what all the forecasts say: the Minister of Justice, Félix Bolaños, in statements to the Senate, has assured that the application of the amnesty is a matter of "time" and that Llarena's resolution is important: "The novelty is that it takes into account the new scenario that will open with the appeals for protection from the TC", highlighted the minister, who added that the "normalization" in Catalonia will not be "complete" until it is fully applied to the leadership of the Procés.