The Constitutional [Court] orders the Supreme [Court] to amnesty the 1-O leaders in a "preferential and urgent" manner

MadridThe Constitutional Court has taken a decisive step to allow the return of Carles Puigdemont to Catalonia. 827 days after the Supreme Court avoided applying the amnesty law to the leaders of the 'Procés' with a convoluted version of embezzlement, the Constitutional Court has concluded that Manuel Marchena violated their rights to effective judicial protection, to access public functions and positions, and to criminal legality, as ARA has learned. It has done so by giving the green light – by seven votes to five – to the ruling on Dolors Bassa's appeal, which discredits the Supreme Court for having made an "internally contradictory" interpretation that is "opposed to the spirit and purpose" of the law. The verdict will be communicated in the coming hours to the Supreme Court, which will have to make a move. This should put an end to the disqualification of Oriol Junqueras, Jordi Turull, Dolors Bassa, and Raül Romeva and brings the return of Carles Puigdemont, Toni Comín, and Lluís Puig closer after Pablo Llarena became open to lifting the arrest warrants with the first ruling.

The progressive majority of the Constitutional Court has imposed its criteria to include in the ruling a direct and explicit order –“clear and precise” in the words of the president of the Constitutional Court, Cándido Conde-Pumpido– that minimizes the Supreme Court's room for maneuver to avoid it: “Reverse the proceedings so that a new pronouncement is made in which the crime of embezzlement is declared amnestied,” it says. Furthermore, it mandates that this be done in a “preferential and urgent” manner. It argues that pardoning embezzlement is “the only conclusion reconcilable” with the “rules of logic and common sense”.

Finally, Cándido Conde-Pumpido’s proposal was imposed. The lead report, regarding Turull, fell into the hands of the conservative José María Macías. His first draft opted to reject the appeal of the general secretary of Junts and agree with the Supreme Court. After the progressive magistrates corrected his work on September 22nd, he himself redrafted the report, but he did not want to add the exhortation directed at the Supreme Court and ended up resigning from the report, which has remained in the hands of Pumpido.

The first ruling correcting the Supreme Court's defiance regarding the amnesty has arrived on the same day that the Official State Gazette publishes the calling of general elections for November 29th. Once all the magistrates have signed it, and without needing to wait for the conservatives to formulate their dissenting votes against the decision of the progressive majority, the Constitutional Court will immediately communicate it to Manuel Marchena, who has the cases of those convicted in the Procés trial on his desk. In parallel, Pablo Llarena will have a free hand to lift the arrest warrants. Gonzalo Boye, lawyer for Puigdemont, has anticipated that the leader of Junts will return to Catalonia once the amnesty has been applied “in an integral manner.” What will be the chronology? First, Llarena will have to lift the arrest warrant and conclude the summary proceedings, and then the Criminal Chamber will have to definitively archive the case.

Andreu Van den Eynde, lawyer for Oriol Junqueras and Raül Romeva, considers it “essential” that Marchena pronounces himself 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 29th elections. For his part, Toni Comín will be able to go to Madrid to collect his MEP certificate after the Central Electoral Board left his seat vacant in July 2024.

“It evaded the genuine meaning” of the amnesty

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 they are meant to administer with loyalty and uses them to finance the Process obtains an unquestionable personal benefit”. Now the Constitutional Court reproaches it for deciding to “elude the genuine meaning” of the amnesty and argues that, far from its interpretation, the wording of the law “leads inexorably” to 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 pronouncement 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 ruling. After Luxembourg denied that the amnesty affects the EU's financial interests, the Constitutional Court also delivers a blow to the Supreme Court's justification in this matter: “The contradiction is flagrant and insoluble and implies a failure of rationality irreconcilable with the guarantee that no one should be subjected to reasoning that manifestly presents a contradictory, unreasonable, and illogical character”, says the ruling.

In the appeal for constitutional protection filed in November 2024, to which ARA has had access, Dolors Bassa argued that the interpretation the Supreme Court makes of the amnesty is “forced, extensive and contrary to the defendant” and “directly attacks” the “spirit and purpose” of the norm, as well as the “logical and common sense of the terms used by the legislator, endangering legal certainty”. The ruling includes some of the concepts and expressions from the appeal of the former Minister of Labor, Social Affairs and Families. “It enters dangerously into the terrain of legislative function, because interpreting the law so broadly entails its practical repeal”, it concluded.