Puigdemont seeks to prevent the Supreme Court from implementing the amnesty.
The former president is trying to have the case transferred to the Supreme Court of Justice (TSJC) to circumvent the high court's stubborn opposition.
Madrid / BarcelonaThe Supreme Court has rejected the amnesty for former President Carles Puigdemont; first it was the investigating judge in the Proceso case, Pablo Llarena, and April 10 The Supreme Court's criminal chamber upheld this ruling, rejecting the Junts leader's appeal. All the rulings have rejected it with the same argument: that the pro-independence leaders, who are being prosecuted for embezzlement, had a "financial benefit" from the 1-O vote because they believe they organized it with public money and saved money out of their own pockets. This argument has been criticized not only by Puigdemont's defense, but also the Prosecutor's Office. Now the former president's future rests in the hands of the Constitutional Court, but his lawyer, Gonzalo Boye, has been trying for weeks to find an alternative way for him to be released: to remove the Supreme Court from the case and let the High Court of Justice of Catalonia (TSJC) decide on Puigdemont. This court first applied amnesty to former minister Miquel Buch and the waiter who acted as his bodyguard in exile, Lluís Escolà, and It was in a case of embezzlement.
Boye has fought to have the case brought before the High Court of Justice (TSJC) from the beginning; in fact, all of the lawyers in the Proceso case have requested it, but the Supreme Court has always rejected it. In the latest ruling, the judges argued that funds had been diverted outside of Catalonia to maintain the case. "The events investigated, which allegedly constitute misappropriation of public funds, took place in part outside of Catalonia, so, in accordance with Article 57.2 of the Statute of Autonomy, there is no reason to question the jurisdiction of this court. The complaint is dismissed," stated Judge Eduardo de Porro. This article of the Statute states: "In cases against deputies, the High Court of Justice of Catalonia has jurisdiction. Outside of Catalonia, criminal liability is enforceable under the same terms before the criminal division of the Supreme Court."
Puigdemont's defense, however, will maintain its claim in the annulment motion it will soon file, the final step prior to filing an appeal for protection of constitutional rights in the Constitutional Court. Boye believes he has more arguments now than before because the investigation is no longer for rebellion or sedition, but for alleged misappropriation of public funds within the framework of the Generalitat (Catalan government). There is also another change: Puigdemont is now a member of the Parliament—thus, with immunity in the Catalan court—unlike when he was a MEP, where the Supreme Court did have the power. Lluís Puig is also a member of the Parliament, pending the same case, while Toni Comín has not yet been recognized as a member of the European Parliament.
This past week, this legal strategy was also reflected in the questions Junts asked former Finance Minister Cristóbal Montoro. in the commission of inquiry into Operation Catalonia"President Puigdemont and the councilors did not have access to state funds. That's significant. Thank you very much, you've helped us a lot," said the Junta's deputy in Congress, Josep Pagès, to Cristóbal Montoro during the appearance, when the former minister stated that, during the term of the coup, the Catalan government could only be controlled by the Catalan government. What significance does this have? The thesis of the pro-independence party and the former president's legal defense is that, since the Catalan government was the one holding the money, the alleged embezzlement linked to the referendum would be limited to Catalonia and the competent court to try it, therefore, would be the High Court of Justice (TSJC).
"For the purposes of establishing the jurisdiction of a judicial body, it is crucial whether the funds are state funds or part of the Generalitat's budget. The objective is to demonstrate that if embezzlement had occurred, the judges should interpret the TSJC as the competent body," emphasize sources consulted by the regional government.
The ECHR scenario
When the investigation involved rebellion or sedition, the Supreme Court held that the events of October 1st affected more than Catalonia because they sought to break the unity of the state. Now, in the embezzlement case, it maintains that money was spent abroad through the Catalan government's delegations. In this regard, in the judgment of the Proceso trial, the court presided over by Manuel Marchena included the expenses of the delegations abroad and Diplocat as part of the embezzlement.
The discussion of jurisdiction is an issue that has dragged on since the beginning of the Proceso case. However, it is one of the arguments that all the defense attorneys for the former political prisoners have raised before the European Court of Human Rights, as they have consistently maintained that the events occurred in Catalonia and should be judged in their entirety by the High Court of Justice. In this sense, Puigdemont's defense team predicts that Strasbourg will ultimately drop the case and allow Puigdemont to return. This scenario would occur if it were to declare the entire October 1st case null and void due to the Supreme Court's lack of jurisdiction, as the defendants convicted in the October 1st case argued in their appeal to the ECHR. If this were to happen—the defense team estimates that it should rule this year—the Supreme Court would have to release Puigdemont's case.
The Constitutional Court's margin
Boye keeps his eyes on Strasbourg because the reality is that the Supreme Court has already signaled that the implementation of the amnesty will not be peaceful, even if it is endorsed by the Constitutional Court. He has no say in the application of the amnesty and that the Constitutional Court could only correct the plainness with Puigdemont if his interpretation did not respond to legal certainty. He can reject the amnesty again for Puigdemont. He also has another option: take the Constitutional Court's ruling to the Court of Justice of the European Union (CJEU) and ask it if pardoning embezzlement is compatible with European law. For this reason, Puigdemont's defense
