The conservative rapporteur of the TC rejects the amnesty for Turull: "Disposing of what was not available implies a benefit"

Madrid“The Supreme Court's interpretation cannot be labeled as surprising or unpredictable, much less capricious or the result of alleged animosity.” The first version of the Constitutional Court's initial report on the amnesty for embezzlement, drafted by conservative José María Macías and to which ARA has had access, proposes to reject the appeal for constitutional protection (appeal for constitutional protection) filed by Jordi Turull against Manuel Marchena's decision not to grant him amnesty and to keep his disqualification in effect 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 defined as the mere possibility of improperly disposing of funds previously unavailable, which increases spending capacity and the consequent possibility of acquiring goods and services. Being able to dispose of what was not previously available already implies a benefit,” the report 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 imputing personal expenses to the public treasury,” it adds, adopting the Supreme Court's argument that the 'Procés' was their “particular political project.” And it provides another reason: “While the 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 first position will not lead the Constitutional Court to decide to prevent 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 have 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 designated by the president of the TC, Cándido Conde-Pumpido. The forecast is that the next version will be discussed on October 6. For now, Pablo Llarena has opened up to lifting the arrest warrant for Carles Puigdemont just after the first verdict of the TC.

Neither “arbitrariness” nor “unreasonableness”

The conclusion of the conservative Constitutional Court magistrate is that the Supreme Court's refusal does not incur in "arbitrariness," nor "manifest unreasonableness," nor a "patent error," but is merely a "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 be informed of the accusation, as well as the principle of criminal legality and the prohibition of interpretations against the defendant.

However, the draft by José María Macías denies that Manuel Marchena committed an "extralimitation or excess" by refusing to pardon the embezzlement: "Quite the opposite. His work has been limited to his primary function, the interpretation of the law as described in the rule itself and not an imprecise role as an 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 maintains the effects of a penalty imposed with all guarantees." And it recalls that in 2021 the Constitutional Court rejected Turull's appeal for 'amparo' against the conviction.