The amnesty, in a decisive and key phase
MadridNext week will be one of the most important of this legislature. The Court of Justice of the European Union (CJEU) has announced for Thursday, the 16th, the publication of its ruling on the amnesty law approved by the Spanish Parliament in May 2024. This is the resolution of the European justice on the challenges filed by the National High Court and the Court of Audit against the pardon for the leaders of the independence process, headed by the former president of the Generalitat and leader of Junts, Carles Puigdemont. Both the Constitutional and the Supreme Courts are very interested in knowing the CJEU's decision, as both courts have pending rulings on the application of this law, which has caused as much or more controversy in the judicial sphere than in the political arena.
In the legal community, there are few doubts that the court of guarantees is in a position to re-endorse the norm, by favorably resolving the appeals for protection of Puigdemont and those convicted by the Supreme Court in 2019 for sedition and embezzlement. On the other hand, no one expresses themselves with the same certainty regarding the possible reaction of the Supreme Court, given that until now it has been opposing any measure that questions its ruling on the 'Procés' and the sentences it imposed.
It should be noted here that the key judge in the first decision to be made is Pablo Llarena, who was the investigating judge of the proceedings. This situation is explained by the fact that this magistrate has decided to stay at the court in August, on a guard duty that he will share with Julián Sánchez Melgar, former Attorney General of the State. At the Supreme Court, it is taken for granted that Llarena will consult his decisions – for example, whether to lift the arrest warrant against Puigdemont, which is in force in Spain – with the magistrates who judged the 'Procés' case, and that he will also request allegations from the parties that intervened in that procedure.
Sources from the Supreme Court explain that the role of the magistrate who presided over the trial, Manuel Marchena – who was also president of the criminal chamber at the time – is not the same now as when the conviction ruling was issued, although he retains strong auctoritas in the court. Marchena not only directed the sessions of the hearing, but he was also the author of the resolution, after a debate that was not easy, even though the court approved the final text unanimously. But among the members of the court there were those who were in favor of the arguments put forward by the Public Prosecutor's Office and of convicting for the crime of rebellion. Prosecutors Javier Zaragoza, Consuelo Madrigal, Jaime Moreno and Fidel Cadena requested, with this legal classification, sentences of 30 years in prison.
From rebellion to sedition
In the end, unanimity was achieved through an intermediate route, and the charge of rebellion was rejected in favor of sedition – requested by the State Attorney's Office, following a strong internal crisis – which carried sentences of between nine and thirteen years in prison. The highest sentences were imposed on those also considered responsible for embezzlement. The court considered this crime in medial concurrence with the aforementioned sedition, and explained that the use of public funds had been the necessary material means to promote the sought-after objective, the separation of Catalonia from the rest of the State.
This was not an obstacle for the same Supreme Court, five years later, in 2024, to rule out applying the amnesty law to the crime of embezzlement, considering that, even if it were not the sought-after objective, the leaders of the Procés who used public money for the expenses of the independence plans had enriched themselves. The criminal chamber argued that the illicit gain had occurred because, had they not had access to public coffers, Carles Puigdemont, Oriol Junqueras, Jordi Turull, Dolors Bassa, and Raül Romeva would have had to resort to their own assets to cover the aforementioned costs.
The TC's decision
The constitutionality of the amnesty law is no longer in question. The guarantor body has made it very clear in all the rulings it has issued on this matter that the aforementioned law does not harm any part of the Constitution nor does it violate fundamental rights or basic principles of its text. The Constitutional Court is the only court with jurisdiction to decide on these matters. Now, therefore, it is up to the CJEU to clarify whether the amnesty affects the funds or financial interests of the European Union or if it contradicts essential aspects of European law.
The progressive majority of the Constitutional Court is confident that the Court of Justice of Luxembourg will adopt the main conclusions of the institution's Advocate General, Dean Spielmann, who in his report last November rejected the thesis that the pardon of the leaders of the 'Procés' had constituted an “auto-amnesty”. The PP and Vox, on the other hand, have maintained that the law was due to an agreement between parties for their interest in the investiture of the socialist leader, Pedro Sánchez, having negotiated with the PSOE as a counter-concession the commitment to pardon the leaders of the 'Procés'. The Advocate General's report –mandatory, but not binding for the CJEU– stated that the challenged norm responds to the search for "a real context of political and social reconciliation and does not constitute an auto-amnesty". The main risk for an immediate application of the law is that the Supreme Court lodges a new challenge or preliminary ruling to the Court of Justice of Luxembourg.
For its part, the Constitutional Court will not issue a ruling on the protection petitions of the leaders of the 'Procés' until October or November. There will likely have to be a change of rapporteur, as the first appeal to be resolved will be Junqueras's, the one that arrived first. The rapporteurship corresponded to the magistrate José María Macías, who has always expressed himself against the amnesty law. If his proposal is rejected, a new rapporteur will have to be appointed.
In short, on this side, everything can move slowly. The political effects of the amnesty, therefore, will not be seen quickly either, unless Llarena allows the immediate return of Puigdemont, which is not the most likely scenario. But if the law is finally applied without restrictions, responding to the objectives with which it was approved, the legislature will have made possible a fundamental aspect of the will to turn the page that drove it.
