Puigdemont requests the recusal of three Constitutional Court judges and halts the decision on the amnesty appeal.

Barcelona / MadridLast-minute twist in the judicial sphere. Carles Puigdemont filed a brief with the Constitutional Court (TC) on Monday requesting that three conservative judges be removed from the ruling on his appeal for constitutional protection against the Supreme Court's decision not to grant him amnesty. According to legal sources, this move means the TC's decision will be postponed for at least a month. Everything indicated that the former president would receive a bitter and a bitter reversal this Tuesday: the court was expected to admit the appeal, but at the same time, it was expected not to withdraw the arrest warrant immediately, according to sources consulted by ARA, and it would prevent the former president's return. But in the end, they will have to wait, at least until the challenges are resolved.

The brief filed by Puigdemont calls into question the impartiality of three conservative judges: Concepción Espejel, Enrique Arnaldo, and José María Macías. The former president's defense, led by attorney Gonzalo Boye, argues that the three judges lacked impartiality and emphasizes their closeness to the People's Party (PP). Regarding Arnaldo, the defense attorney believes he has a "previous position" regarding Puigdemont, referring to the book. Constitutional Time: Limits, Checks, and Balances of Power, in which the Constitutional Court judge shows, according to the former president, "animosity" toward him. He also points out that Arnaldo has made statements similar to those made by Constitutional Court judges removed from matters related to the Trial, such as Antonio Narváez and Cándido Conde-Pumpido, and criticizes him for "his close relationship with the People's Party (PP), a party he considers "responsible for his promotion" to the Constitutional Court judge.

Boye also uses this last argument to request the recusal of Judge Espejel, a member of the Professional Association of the Judiciary (APM), which in recent years has shown "excessive belligerence" against Puigdemont, according to the document. Furthermore, he considers that he gave a "good example" of his personal opinion on the 1-O referendum when he cast a dissenting vote against the 2020 acquittal of Mossos d'Esquadra chief Josep Lluís Trapero.

Finally, citing several media reports, he criticizes Macías for having spoken out "manifestly" and on several occasions "against the interests" of Puigdemont, as well as for his "frontal war" against the amnesty law and his friendship with Judge Pablo Llarena. "What guarantee of impartiality is there when the person called to decide on a matter called the plaintiff a Nazi and the person who issued the contested ruling a friend?" asks Boye.

Now, therefore, the court's ruling on the admission of Puigdemont's appeal is suspended, since it will be necessary to process the recusal requested by the former president and restart the admission process.

In his appeal, the former president asked the court of guarantees to urgently order the Constitutional Court (TC) to order investigating judge Pablo Llarena to lift the arrest warrant still in force for the Junts leader on Spanish territory. Puigdemont's defense team requested this as a precautionary measure, meaning that the TC decide without hearing the opinions of the other parties involved in the proceedings. Alternatively, it has also requested this as a precautionary measure, meaning that the parties should be given notice so they can take a position.The main problem is that the lifting of the arrest warrant is directly linked to whether the amnesty is granted in the judicial case for embezzlement in which the Junts leader is accused, so granting this measure would preempt the decision on the merits of the case.

The appeals of Junqueras, Romeva, and Bassa

The first plenary session of the Constitutional Court of the new academic year, therefore, will not consider Puigdemont's appeal for protection. However, it will debate the appeal of other leaders of the 1-O referendum, such as Oriol Junqueras, Raül Romeva, and Dolors Bassa, to whom the Supreme Court has also not granted amnesty, arguing that the law excludes the crime of embezzlement for which they were convicted. The twelve judges participating in this deliberation must decide on the first step: admissibility for processing. Once this occurs, the merits will have to be studied, and it is expected that the resolution arrives before 2026.

The central element of the debate that the judges will have in the coming months is whether the Supreme Court has violated the fundamental rights of the pro-independence leaders when interpreting the amnesty law as not applicable to their legal cases. Llarena has stated in several conferences for months that the Constitutional Court cannot correct the Supreme Court's interpretation of the law, because it could only do so if its decision were "extravagant or unforeseeable," which he believes is not the case. However, both the Prosecutor's Office and the judge of the Second Chamber of the Supreme Court, Ana Ferrer, who issued a dissenting opinion, emphasized that Llarena and Manuel Marchena's justification for denying the amnesty was "contrary to logic."

The CJEU's opinion

The two main reasons given by Llarena and Marchena for their opposition were that the embezzlement on October 1st involved "personal enrichment of a financial nature" on the part of the former members of the European government (the Supreme Court's argument is that since they did not pay the October 1st tax out of their own pockets, they were enriched). Given that the amnesty law excluded these cases from the possibility of applying the law in cases of embezzlement, they rejected it for Puigdemont, Junqueras, and the rest of the defendants. However, in the coming months, the Court of Justice of the European Union (CJEU) is expected to rule on the preliminary questions raised by the Court of Auditors and the High Court of Justice of Catalonia regarding the amnesty. Broadly speaking, the Luxembourg court will give its opinion on whether the embezzlement on October 1st affected the financial interests of the EU and whether amnesty is possible for embezzlement offenses. In principle, the Constitutional Court will wait for the CJEU to rule before ruling on the appeals, which it begins reviewing this Tuesday.