Puigdemont appeals to the Constitutional Court for amnesty: "The Supreme Court has emptied the law of its content."

BarcelonaMore than a year after the approval of the amnesty law in the Congress of Deputies and the Supreme Court's repeated refusal to apply the law to him, former President Carles Puigdemont has finally been able to file his appeal for protection in the Constitutional Court. The ruling will be key to determining whether or not he can return to Catalonia, as only the Constitutional Court's response can overturn the Supreme Court's decision against his amnesty. A ruling is expected in the fall.

However, in an attempt to accelerate the effects of the amnesty, Puigdemont is requesting that, before the funding response, he be granted precautionary measures and that the state arrest warrant be suspended so he can return. He argues that in no case would he anticipate the Constitutional Court's final response, but rather the opposite: a more serious violation would be avoided because, if he decided to set foot in Spain, he would end up in prison despite not having been tried yet, as argued in the appeal to which ARA has had access.

Beyond the precautionary measures, Puigdemont's arguments involve alleging that, on the one hand, the Supreme Court is not competent to rule on him because the events of 1-O took place in Catalonia and, on the other, that his effective judicial protection and the principle of criminal legality have been violated by deciding what it did. "The Supreme Court has emptied the law of its content," asserts attorney Gonzalo Boye in the appeal for protection of constitutional rights. By rejecting the application of the amnesty for the crime of embezzlement, it has used the exception that the law provides to prevent the criminal disregard of illicit conduct for personal gain, in a generalization to avoid it. "It has turned the exception into the rule," says Boye, which is "arbitrary" and "unconstitutional."

"The selective failure to apply the amnesty law by certain courts, without constitutional or prejudicial oversight, generates a dysfunction in the system of democratic guarantees by establishing a double standard of legality incompatible with the principle of equality before the law. The amnesty has been declared in accordance with the Constitution, and its preservation is subject to jurisdictional jurisdiction," the text states. And remember that, with this ruling, the Supreme Court is violating Puigdemont's right to freedom of movement (the arrest warrant remains in place in Spain), his right to political participation, and his right to equality.

For Puigdemont, his case is of "constitutional significance" as it affects two issues that he considers fundamental for the effective enforcement of rights in criminal proceedings: on the one hand, it is decided whether it is "constitutionally admissible for a judicial body without functional and objective jurisdiction," in reference to the Supreme Court's decisions on the application of the amnesty; on the other hand, it is also discussed, according to the former president in his appeal, "whether an extensive, voluntaristic interpretation without legal basis of an exception to the amnesty can legitimize the restriction of fundamental rights such as personal liberty, including freedom of movement throughout the European Union, equality and political participation." "Both are of extraordinary relevance because they affect the structure of guarantees of the rule of law," the text resolves.

The argument of jurisdiction

In this way, the former president and his lawyer, Gonzalo Boye, are deepening the line of defense they have maintained from the beginning. Beyond alleging a possible abuse of power by the Supreme Court for refusing to grant him the amnesty, citing the right to effective judicial protection and the rule of law, they emphasize above all that the high court lacks the authority to make the decision. In fact, it is the same argument that former political prisoners also raised with the Constitutional Court and, at the same time, with the European Court of Human Rights, when they filed an appeal against the October 1st ruling that sentenced the pro-independence leaders to up to 13 years in prison. With this strategy, they seek to remove the Supreme Court from the equation, since if the Constitutional Court were to side with them and rule that the high court lacks jurisdiction to decide on Puigdemont's amnesty, his case would likely be referred to the High Court of Justice of Catalonia, which has already amnestied cases for embezzlement. And one of the risks for the former president is that if the Supreme Court continues to be decisive, he could try to even dribble a favorable estimate of the TC's appeal by taking his response to the Court of Justice of the European Union, just as the Seville Court has done with the ERE case.

"The Supreme Court's refusal to recognize the loss of jurisdiction and to decline its jurisdiction in favor of the competent court constitutes a double violation: not only does it maintain an incompetent judicial body, but it also prevents the affected party from accessing the judge established by law. This practice constitutes a form of judicial resistance to the application of a democratic law by evading its compliance," argues the appeal for protection.

The importance of the TC's response

The Constitutional Court's response will be key to Puigdemont's future. Depending on what it says, it will also give the Supreme Court more or less leeway to act. It must be kept in mind that, after the Constitutional Court's ruling, the ball will always return to the high court, which will be responsible for interpreting the constitutional ruling and applying it as it sees fit. The more forceful and clear its response, the less room for maneuver the Supreme Court will have.

Puigdemont's appeal for constitutional protection itself conveys to the Constitutional Court the importance of the ruling. "The structural nature of all these violations demands a clear response from the Constitutional Court, especially in a context in which there is still no legal doctrine on the interpretative limits of criminal exceptions or on the duty of application by the competent body. This is a case that raises an issue of different rights on which there is no constitutional doctrine," he warns. Thus far, the Constitutional Court has upheld the constitutionality of the law, but has not assessed its application in each case. The decision regarding Puigdemont will also affect the other exiles and the rest of those accused of embezzlement (such as Josep Maria Jové and Lluís Salvadó), as it will determine whether, as the Supreme Court has said, the 1-O referendum represented a profit for them and they can be excluded from the amnesty.