The conservative rapporteur of the TC rejects the amnesty for Turull: "Disposing of what one did not possess implies a benefit"

Madrid“The Supreme Court's interpretation cannot be labeled as surprising or unpredictable, and much less as capricious or the result of a supposed animosity”. The first version of the Constitutional Court's first draft regarding the amnesty for embezzlement, prepared by the conservative José María Macías and to which ARA has had access, proposes rejecting the amparo appeal filed by Jordi Turull against Manuel Marchena's decision not to grant him amnesty and to keep his disqualification alive until 2030. The document, which will be debated at the TC plenary session on September 22, fully endorses the high court's thesis, which avoided pardoning the embezzlement by alleging that the members of the 1-O Government enriched themselves because they did not pay for the referendum out of their own pockets: “The benefit can also be realized in the mere possibility of improperly disposing of funds not previously available, a fact that increases spending capacity and the consequent possibility of acquiring goods and services. Being able to dispose of what one did not have already implies a benefit”, the draft argues.

The 65-page document justifies that “the use of public money brought a personal benefit in the form of patrimonial savings”, because the ministers “relieved themselves of a personal expense” by paying with public money for expenses they would have had “to face with their own money”. “They did not have to pay for the financing of the secessionist process out of their own pockets”, it emphasizes. “Enrichment cannot be limited to an increase in assets, but also to avoiding their decrease by charging personal expenses to the treasury”, it adds, adopting the Supreme Court's argument that the Process was their “particular political project”. And it provides another reason: “While citizens who supported the process with donations saw their assets reduced, the public officials kept theirs intact, saving themselves a personal expense. In this way, everyone's money prevented theirs from being reduced”.

This initial positioning will not result in the Constitutional Court deciding to block the amnesty for Jordi Turull. Predictably, on September 22, the progressive majority will block this version. That day, José María Macías will defend his position, but if he remains in the minority, a new draft will need to be prepared that accepts the appeal and forces the Supreme Court to apply the amnesty. He could take charge of this himself –he would have to put in writing an opinion contrary to what he thinks, but it would allow him to modulate the justification– or another magistrate appointed by the president of the TC, Cándido Conde-Pumpido. The forecast is that the next version will be discussed on October 6. The first ruling is the one that will establish a doctrine that the Constitutional Court will subsequently apply to the rest of the cases and from which, for example, Carles Puigdemont and Oriol Junqueras will benefit. In fact, Pablo Llarena has opened up to lifting the arrest warrant for the former president of the Generalitat just after the first verdict of the TC.

Neither “arbitrariness” nor “unreasonableness”

The conclusion of the conservative magistrate of the Constitutional Court is that the Supreme Court's refusal does not incur in "arbitrariness", nor in "manifest unreasonableness", nor in a "patent error", but rather it is a mere "discrepancy with the interpretation and application of the law". Jordi Turull denounced that the decision not to grant him amnesty had violated his rights to effective judicial protection, political participation and representation, defense, and to know the accusation, as well as the principle of criminal legality and the prohibition of interpretations against the defendant.

However, José María Macías's draft report denies that Manuel Marchena engaged in an "overreach or excess" by refusing to pardon the embezzlement: "Quite the contrary. His task has been limited to his primary function, the interpretation of the law as it is described in the norm itself and not an imprecise role of exegete of an apparent will of the legislator, if this is not coherently and clearly described". The text considers that the Supreme Court gave a "reasoned, complete and structured" response with a motivation that allows "knowing with clarity the logical and legal itinerary".

The first draft of the report also denies that the refusal to apply the amnesty has affected Jordi Turull's right to political representation and refers to the sentence of the Procés trial: "It does not introduce a new autonomous restriction, nor does it by itself prolong a constitutionally illegitimate situation of political exclusion, but rather it maintains the effects of a sentence imposed with all guarantees". And it recalls that the Constitutional Court rejected Turull's amparo appeal against the conviction in 2021.