Gonzalo Boye: "The Constitutional Court has the tools to directly pardon"

BarcelonaGonzalo Boye (Viña del Mar, Chile, 1965) is one of the leading lawyers of the "Procés", the main person responsible for the legal strategy of the exile, and one of the architects of the amnesty law that has just been validated by the Court of Justice of the European Union (CJEU).

Does he feel personally validated by the work done two years ago in Congress?

— All those who have worked on it have felt the satisfaction that the highest European legal interpretation body has spoken in the terms of clarity and forcefulness in which the CJEU has spoken.

Chronologically, which people awaiting amnesty will be the first to benefit from the CJEU ruling?

— The CDRs and those at the Court of Auditors will resolve it in a matter of weeks, I imagine.

What room does the Supreme Court have to oppose the sentence?

— From a legal point of view, I believe they have no room for maneuver. From a citizen's point of view, I believe they will do as they please.

Who can impose on the Supreme Court to apply the ECJ's ruling?

— The Constitutional Court has room for manoeuvre, Strasbourg has room for manoeuvre, and the European Commission has room for manoeuvre with respect to Spain.

What is your opinion on the attitude of the Constitutional Court (TC) of waiting for this ruling from the CJEU?

— If the Constitutional Court had any doubt about Union law, it should have raised its own preliminary ruling, but it did not. It had no doubt, but it has been beating around the bush and seeing when was the least bad moment.

The Supreme Court also did not present any and now says it does not feel challenged by Europe.

— What the Supreme Court has done is more criminal. In the case of President Puigdemont and the exiles, we asked it to submit a preliminary ruling on the amnesty. They told us it was a perfectly clear issue and that there was no doubt it conflicted with Union law. We insisted on appealing the need to submit a preliminary ruling, and the chamber, presided over by Mr. Marchena, told us the same thing. Now we have seen that they have been discredited. The CJEU clarifies doubts in a way that the Supreme Court does not like. The Supreme Court cannot now, two years later, say that it now does have a doubt. This would not pass even the slightest admissibility filter before the CJEU.

Do you consider the option of the Supreme Court presenting a preliminary ruling now to be ruled out?

— It would be one of the biggest farces I could make. The highest body of Spanish ordinary justice would go to make a fool of itself at the CJEU. I don't think they will do that.

Do you trust that the Constitutional Court will be very clear when demanding that the Supreme Court apply what the ECJ has said?

— The Constitutional Court has the institutional duty to be clear and end this debate once and for all.

What tools does the TC have if the Supreme Court refuses to apply the amnesty?

— The same ones it has had regarding the Process. It has all the capacity because it was given to it in 2015. Another thing is whether they want to use it.

And how is it used?

— It's very easy. All that's needed is for them to declare that rights have been violated and, therefore, Pedro, Juan, and Diego are declared amnestied.

But the Constitutional Court cannot directly pardon.

— And it certainly can. The TC, for example, if a person were in prison, can say that their right to personal liberty has been violated and that this person must be released. That's it. They don't execute, but they've already said so.

Does what the TC says go to church?

— If they want to do it, yes.

You and Junts have also heavily criticized the PSOE's attitude. Do you consider that the PSOE has deceived you on some issues that had been agreed upon regarding the application of the amnesty?

— The PSOE has failed to fulfill its commitments and, for that reason, Junts made the decision it made. I am not going into that. However, the PSOE was one of those for whom any amnesty law was acceptable: they saw it more as an instrument than a solution. Now President Illa appears, taking credit for the law when he himself said neither referendum nor amnesty. We all have it clear because we have memory.

In any case, is the PSOE an ally now for the application of the amnesty?

— It is in the hands of the courts. What was in the hands of the PSOE was the Prosecutor's Office, as Pedro Sánchez said. And the Prosecutor's Office has not helped at all.

In what sense?

— For example, it could have supported the precautionary measures and it did not.

The Constitutional Court also did not validate the withdrawal of the arrest warrant for Puigdemont.

— Exactly.

When will President Puigdemont be able to return to Catalonia?

— It is a question that the Spanish judicial authorities will have to answer. The moment they apply the amnesty, I am sure the president will set a return date.

Will he not come here to submit to the Supreme's processing?

— After nine years it wouldn't make sense.

Could we find ourselves in the coming weeks with all courts applying the amnesty except for the Supreme Court?

— In the current situation, we are discovering a series of gross, grotesque corruption cases that will all reach the Supreme Court. I believe the court should think hard about reinforcing its authority rather than its power. What do I mean by this? A court revalues itself in terms of authority if its resolutions are well-founded, rational, logical, and in accordance with the law. And it strengthens its power if it does whatever it pleases. For what is coming now to the Spanish state, I believe the Supreme Court must gain strength and reinforce itself in terms of authority, moral and legal, not by force, but by reason.

If there are elections in Spain and the PP and Vox come to power, they say they will roll back the amnesty. Can they do that?

— They have no margin because they are acquired rights. The only reforms that have retroactive effects are those that benefit the defendant, not those that harm them. In any case, I find it hard to believe that Vox will come to power. If the PP is sensible, it will try to reach a situation where it does not need Vox.

In the autonomies it has not achieved it, because Vox has demanded to enter the governments.

— Yes, but we'll see. We have to be attentive.

According to the polls, with Junts and PNB it would not be enough. Should it seek an alliance with the PSOE?

— In politics, everything has been seen in the last fifty years. I do not rule anything out.

Are Spanish institutions in crisis?

— We see a president of the government who says that the Prosecutor's Office depends on him and we see the attorney general convicted. And now we see that it turns out he had meetings with the secret services. We see a number of things that speak very badly of the institutions and a lot about the need for total regeneration.

Does Spain need a change of government immediately?

— I think so. Do we know what Pedro Sánchez's project is? Can he change what has happened with a general secretary of his party, with the former Minister of Transport, with his own wife, his brother, with his ally Zapatero? He cannot. But what can be done is to change the government.

Pro-independence movements spoke of lawfare in the cases of the Procés. Do they not see lawfare in the PSOE cases now?

— I find it hard to qualify as lawfare that in the safe of a law firm there is a necklace valued at 1.3 million [all the jewels and not just the necklace were valued at 1.3 million] that someone forgot to declare to the Treasury. There has been a parapolitical structure to persecute enemies with smear campaigns that is becoming evident. Not because the Guardia Civil or the National Police say so, but because it is in the messages they exchanged among themselves. We have seen them say that the number one orders it. We see a decomposition at a level where one must be very blinded by partisan interest not to see it.

Does it resemble what was done during Mariano Rajoy's government?

— I don't see the equivalence. Can you imagine if a necklace worth 1.3 million euros had been found in the house of a friend or ally of Rajoy? Because it seems that Pedro Sánchez was the only one who didn't know what was going on with his wife, his brother, Zapatero, Ábalos, Cerdán...

You say that with the amnesty you have already done all the work.

— The ball is in the court of legal institutions. We have tools to act according to what they say.

And as for you, who have defended the causes of exile for so many years, do you consider that a stage has ended?

— My work ends the moment the exiles return to Catalonia.