Amnesty is constitutional... but what now?

MadridHe The Constitutional Court (TC) has endorsed the validity of the amnesty law The Constitution was approved this Thursday by six votes to four: the progressive majority prevailed over the four conservative judges, who will issue a dissenting opinion. The law thus seeks to put an end to the criminal consequences of the Trial, but this will not entail immediate application of the law to the leaders of 2017, including former President Carles Puigdemont, who is still in exile. It should be noted that the high court's decision endorses the entire law in general, responding to the appeal filed by the People's Party (PP), but does not assess how it should be applied in specific cases. According to data from the Òmnium amnesty commission, in its May 30 report, 48 cases of amnesty granting remain pending questions of unconstitutionality or preliminary rulings before the CJEU, while in 75 cases there was no judicial response, and in more than 300, no judicial response had been processed.

Resources of the autonomous communities

And with this first verdict, the Constitutional Court's work isn't over; on the contrary. It's only the first step in a task that could drag on until the end of the year. Once the PP's appeal is finalized, it must address those of the autonomous communities that also challenged the amnesty law: a total of fifteen. There are fourteen appeals filed by the autonomous communities governed by the PP and another by Castilla-La Mancha, chaired by the socialist critic of Pedro Sánchez, Emiliano García Page.

This deliberation, however, would be in September. In any case, the outcome of these appeals is foreseeable after the Constitutional Court has already endorsed the law's fit into the constitution following the PP's appeal.

Questions of unconstitutionality

It won't be until the Constitutional Court begins to address the questions of unconstitutionality—there are a total of four—that will affect individual cases. The judges will have to resolve the questions that several courts have raised about specific cases when applying the law.

The High Court of Justice of Catalonia raised a total of three. The first affects ERC deputies Josep Maria Jové and Lluís Salvadó and former minister Natàlia Garriga for their role in the undergovernment In 2017, they are being investigated for crimes of embezzlement, malfeasance, and disobedience. The High Court of Justice (TSJC) considered them eligible for amnesty, but had doubts regarding the embezzlement charge, which had already been questioned by the Supreme Court. In this sense, in the ruling on this appeal, the Constitutional Court could now rule on the issue of embezzlement (which indirectly affects Puigdemont). This would be the first time, since this week's ruling says nothing: it hasn't been included because the PP didn't challenge it in its appeal.

The High Court of Justice (TSJC) has also raised questions with the Constitutional Court before deciding whether to grant amnesty to former President Quim Torra and former CUP MP Pau Juvillà, in both cases for the crime of disobedience for not removing yellow ribbons from institutional buildings. The Supreme Court also raised a constitutional challenge in a case of aggravated public disorder in Girona during protests against the 2019 Trial ruling.

Appeals for protection

The appeals for protection will be the last to be addressed by the Constitutional Court, but they are key to the effective amnesty of the leaders of the Process. This Wednesday, the Supreme Court rejected the motion for annulment filed by former President Puigdemont and former Minister Toni Comín, so they are now clear to file their appeals for protection in the Constitutional Court. This is what former Minister Lluís Puig has already done—he did not file a motion for annulment in the Supreme Court—and also former Ministers Jordi Turull, Oriol Junqueras, Raül Romeva, and Dolors Bassa, who have appealed to the Constitutional Court against the criminal chamber's decision not to apply the amnesty law to them because they believe it is misappropriated.

Now, even if the Constitutional Court were to rule in their favor, the ball would then return to the Supreme Court, which must ultimately decide whether to clear them of criminal liability. At this point, there is speculation about one option: that the Supreme Court will raise a preliminary ruling with the Court of Justice of the European Union (CJEU), which would challenge the ruling the Constitutional Court may make and further delay the implementation of the amnesty. This is something that Puigdemont's lawyer has already attempted to torpedo with the proceedings underway at the CJEU: he has requested that all questions related to the amnesty, which Luxembourg must resolve before the end of the year, be consolidated.

Puigdemont's return

Ultimately, the return of former President Carles Puigdemont to Catalonia after more than seven years of exile and, on the other, the ability of former political prisoners such as Oriol Junqueras and Jordi Turull to stand in elections will depend on what the Constitutional Court decides on the appeals for protection and the subsequent ruling of the Supreme Court. These issues, until now, have been sworn to prevent. Speaking to Catalunya Ràdio this Thursday, Puigdemont's lawyer, Gonzalo Boye, indicated that the Junts leader will return once the arrest warrant against him is lifted: "I imagine the president will return when the precautionary measures are lifted," Boye explained, adding that this was previously reported by Toni Comín. He does not expect a decision to be made during the holidays.

In any case, Boye expressed confidence that the judges would not act "seditiously" and refuse to apply judicial omission once it has already received the green light from the guarantee body. "Creativity has a limit," he said, referring to the subterfuges they might try to find to circumvent the law. Lluís Puig's lawyer, Jaume Alonso Cuevillas, had already filed an appeal for protection on behalf of the former minister seeking full amnesty. "Will the Constitutional Court have enough courage to say what it should say without a doubt?" he asked, in statements to RAC1. If not, he said, the only option would be the European Court of Human Rights.