Judge Llarena lifts the arrest warrant for Puigdemont after the Constitutional [Court] ruling

Madrid3,263 days have passed since he left for Belgium and 847 days since the amnesty came into force, and Carles Puigdemont now has a clear path to return to Catalonia, although he will wait for the final archiving of the case to do so—in a few days or weeks. He will be able to put an end to almost nine years of exile after the Constitutional Court ordered the Supreme Court to apply the amnesty law to the 1-O leaders in a “preferential and urgent” manner and, a few minutes later, Judge Pablo Llarena lifted the arrest warrant that had been in force since November 2017 and which he confirmed in July 2024 with a convoluted justification. The TC now concludes that pardoning the embezzlement is “the only conclusion reconcilable” with the “rules of logic and common sense” and reproaches Manuel Marchena for deciding to “evade the genuine meaning” of the amnesty with an “internally contradictory” interpretation that is “manifestly contrary” to the “purpose and spirit” of the law.

Immediacy has arrived by surprise in Madrid. At 11:53 a.m., the plenary session of the TC approved – by seven votes in favor and five against – the ruling that upholds the amparo appeal of Dolors Bassa and declares that the Supreme Court violated her rights to effective judicial protection, to access public functions and positions, and to criminal legality. The progressive majority imposed its criteria to include a direct and explicit order to the Supreme Court to “withdraw the proceedings” in order to issue a new resolution that “declares the crime of embezzlement amnestied.” 47 minutes later, and still with the ruling unsigned, the high court announced that Pablo Llarena was lifting the arrest warrants.

In the four-page interlocutory order, Judge Llarena recalls that the right to liberty is recognized in the Magna Carta and justifies that the Constitutional Court's decision "compels us to weigh" the new context: "The execution of the arrest warrants could cause a deprivation of liberty that the examination of the sentences might reveal to be improper and whose prejudice would not be eliminated by its subsequent lifting," he alleges. Faced with this "risk," he considers it "proportionate" to leave the orders without effect "provisionally" and with a "strictly transitory character." Therefore, he is not carrying out an "anticipatory execution" or an "automatic extension" of the sentence, but rather he will have to sign off on the lifting of the precautionary measures once he has become familiar with the full text of the sentence.

Llarena anticipates that he will do so "without delay," but leaves the door open to backtrack because the resolution he has issued "does not declare the amnesty applicable and does not extinguish criminal liability." Subsequently, it will have to be the criminal chamber that definitively archives the case. Gonzalo Boye, Puigdemont's lawyer, has anticipated that the leader of Junts will not return to Catalonia until the decision is irreversible and the amnesty has been applied in an "integral manner." "We will have to wait to have this resolved, we will have to see how the file ends up being closed," he told Catalunya Ràdio. "We will not rush, it is not a matter of a few hours now," he added. For his part, Toni Comín has the door open to go to Madrid to collect his MEP certificate, after the Central Electoral Board left his seat vacant in July 2024. Former minister Lluís Puig also has the door open to his return to fully exercise the functions of deputy in Parliament.

In parallel, with this Tuesday's decision by the Constitutional Court, it remains pending for Marchena to put an end to the disqualifications of Oriol Junqueras, Jordi Turull, Dolors Bassa and Raül Romeva. The lawyer for the ERC leader, Andreu Van den Eynde, considers it "essential" that the Supreme Court pronounces itself in a "very imminent" manner to avoid an "evident and irreparable injury" to the right to political participation and allows them, if they wish, to be able to run in the November 29 elections.

The debate at the Constitutional Court

The deliberation at the Constitutional Court, which lasted an hour and a half, tipped the balance in favor of Cándido Conde-Pumpido's proposal. The lead report, regarding Turull, fell to the conservative José María Macías. His first draft opted to reject the appeal from the general secretary of Junts and side with the Supreme Court. After the progressive magistrates corrected him on September 22, he himself rewrote the draft, but he did not want to add the exhortation directed at the Supreme Court and ended up resigning from the report, which remained in Pumpido's hands.

The dissenting opinion formulated by the five conservative magistrates, to which ARA has had access, is highly critical of the progressive majority. They consider that they have overstepped by making the Constitutional Court assume an “improper role as interpreter of ordinary legality” with a ruling that contains an “unjustified excess of qualifiers” and that “deepens the rupture” of “constitutional architecture.” “What has been done is to usurp the work of the Supreme Court in the assessment of the amnesty,” they lament. They share Macías's thesis that “being able to dispose of what one did not possess implies a benefit” and argue that the verdict “has crossed a boundary of special significance” because it “indicates exactly” to the Supreme Court the “concrete meaning” of the new decision, which causes an “absolutely unjustified and unnecessary institutional collision.”

In July 2024, the Supreme Court closed the door on the amnesty alleging that the members of the 1-O Government enriched themselves because they did not pay for the referendum out of their own pockets: “Whoever squanders public funds that they must administer with loyalty and dedicates them to financing the Process obtains an unquestionable personal benefit,” it said. Now the Constitutional Court argues that, far from their reading, the wording of the law “inexorably leads” to the understanding that only the “diversion of public funds carried out for purposes of personal corruption” is excluded, and not those with the objective of making the 1-O possible.

The Constitutional Court's ruling comes three months after the verdict of the Court of Justice of the European Union (CJEU) endorsing the compatibility of the amnesty with European law. It was a filter that the TC was waiting for before issuing its sentence. After Luxembourg denied that the amnesty affects the financial interests of the EU, the Constitutional Court also strikes a blow to the Supreme Court's justification on this matter: “The contradiction is flagrant and insoluble and implies a failure of rationality irreconcilable with the guarantee that no one be subjected to reasoning that presents in a manifest way a contradictory, unreasonable character lacking logical sense,” says the ruling.