The amnesty and the deep state

MadridThe ruling of the Court of Justice of the European Union (CJEU) supporting the Spanish amnesty law is a supremely important step towards achieving that this norm can finally be applied without exclusions or restrictions one day. But for now, it is not enough to stop the long chess game that has been played in political and judicial spheres since 2017 – and before – around this issue. It is evident that the reason of state remains present in the attitude maintained by institutions, organizations, and bodies of all kinds, along with the power core of the conservative magistracy, well established at the top of the state's organizational chart. To realize this, one does not need to be a radical independentist. It is enough to have followed the events of recent years with some interest.

This period has been characterized by a first stage of circumstantial union of the PP and the PSOE to suspend Catalonia's autonomy after the October 1st referendum, declared illegal by the Constitutional Court. This phase gave way to another in which the amnesty law has served to become the ground for a virulent power struggle. The two major state parties, which agreed with relative ease on the application of Article 155 so that the central administration would take over the direction and control of the autonomous institutions, have been tearing each other apart for almost a decade regarding the pardon of the main leaders of the Procés. This is where we are, this is where we remain.

A main piece of this long activation of what is commonly defined as "the deep State" is the Supreme Court. Strictly speaking, we should call it self-activation, because at no time has it been necessary for the Criminal Chamber, in charge of the case against the leaders of the Procés, to be the object of external pressure. In fact, there was great ease of communication between this body and the Prosecutor's Office. Between November 2016 and the same month in 2017, it was a former magistrate of the Criminal Chamber, José Manuel Maza – who died due to complications from a kidney infection during an official trip to Argentina – who directed the Prosecutor's Office. The initial complaint against Puigdemont and the other members of his government already marked a path of maximum hardness, with the accusation of a crime of rebellion for which 30 years in prison were requested.

A lawyer never identified by the Supreme Court appeared in the Criminal Chamber in those early days, asking about the treatment Puigdemont could expect if he returned to Spain and made himself available to the court. The alleged lawyer for the former president received no concrete answer. She was told to present herself first, and that it would be seen later, depending on the outcome of her interrogation. It was clear that the court did not consider the hypothesis of a negotiated return at all. But it was also possible to detect that while the Supreme Court already found the prosecution's maximum rigor strategy acceptable, the judges would act primarily seeking to make decisions unanimously, under the authority, and especially the auctoritas, of the President of the Chamber, Manuel Marchena, in optimal communication with the investigating judge of the case, magistrate Pablo Llarena.

During the investigation of the case, the "deep state" worked primarily to achieve Puigdemont's arrest, taking advantage of his movements around Europe. Agents of the National Intelligence Center (CNI) followed him on his return from a trip to Finland and Denmark, and in March 2018 they obtained the collaboration of the German authorities to make him available to the court of the state of Schleswig-Holstein. The judges of this instance ruled out handing him over to Spain for the crime of rebellion, but agreed to do so for embezzlement. The Supreme Court would later lament years later having then made the decision to reject it. The all-or-nothing approach was preferred. They wanted to avoid a defendants' dock with maximum sentence requests, and a parallel trial for the head of the alleged rebellion, charged exclusively with the instrumental crime of embezzling public funds. It would later be commented in the same court that Puigdemont could have been sentenced to 12 years in prison, the highest penalty for embezzlement with aggravating circumstances. As can be seen, it was almost the same as what was finally imposed on Junqueras and other former government members – between 12 and 13 years – for sedition in concurrent medial also with the irregular use of public money.

All this background and history helps to understand the reasons why the Supreme Court has decided not to budge an inch after the ruling issued by the CJEU accepting that the amnesty law is a prerogative of the Spanish Parliament and in this case intended to promote the redirection of a period of political tensions and favor "reconciliation". Probably, today the Supreme Court would again impose heavy sentences for the events of the Procés, although no longer for the crime of sedition, a type that has disappeared from the Penal Code. The fact is that the Criminal Chamber believes it has given the Procés the appropriate response from the rule of law. And that is why it prefers the Constitutional Court to show its hand first.

The first to make a move

The Supreme Court wants the guarantees body to administer the State's pardon in any case, by admitting the appeal for protection filed by Puigdemont and those accused or already convicted of embezzlement to whom the Criminal Chamber did not apply the amnesty. This is why doubt persists about what this court will do once the Constitutional Court has established that the amnesty must be applied to the former members of the Government who allegedly enriched themselves by not paying the expenses of the Procés with their assets, and by doing so with public funds, thus committing embezzlement. It is this construction by the Criminal Chamber that demonstrates the Supreme Court's rejection of reviewing its own sentence. This places us again in consideration of the role of the "deep State" in thwarting and repressing the Procés. With an important addition. In reality, the objectives of the Procés began to be lost a decade earlier, with the Constitutional Court's ruling on the reform of the Statute of Autonomy, which initially aimed for a judicial power of its own for Catalonia, and it was not achieved. That first battle was already won by the "deep State", which then had a conservative majority in the guarantees body.