The moment of Europe arrives: the amnesty plays it at the CJEU

BrusselsKey ruling for the application of the amnesty and the political and judicial future of leaders such as Carles Puigdemont and Oriol Junqueras. The Court of Justice of the European Union (CJEU) will rule this Thursday around 10 a.m. on the legality of the regulation and will indicate the path to the Constitutional Court, the Supreme Court, the National Court, and the rest of the Spanish courts, some of which refuse to apply it.

Specifically, the highest court of European justice will pronounce on the preliminary rulings presented by the Court of Auditors regarding the application of the amnesty in expenses related to the referendum of October 1, 2017, and on Operation Judes against the CDRs, in this case at the request of the National Court. The doubt they have raised: they consider that the use of public funds and the decisions of the leaders of the Procés have negatively affected the financial interests of the European Union, and that the community directive on the fight against terrorism is violated.

The defense of the leaders of the Procés and the pro-independence activists who may benefit from the amnesty are optimistic about the verdict from Luxembourg. It should be recalled that the Advocate General of the CJEU broadly endorsed the regulation that allowed Pedro Sánchez to secure the support of Junts and Esquerra and be re-elected as head of the Spanish government. Although their pronouncements are mandatory and not binding, in the vast majority of cases – around 80% – their opinion coincides with the final ruling of the CJEU.

The Advocate General of the CJEU not only argued that the application of the amnesty does not negatively affect the financial interests of the European Union and does not violate the EU directive against terrorism, but also justified the approval of such a measure by the political and legal context of Catalonia and Spain. "It has been approved in a real context of political and social reconciliation," he stated.

Even so, the lawyer rejected that it is an "auto-amnesty", as the lawyer for the European Commission, Carlos Urraca, had assured during the oral hearing of the trial, and as the Spanish right wing has repeatedly stated. "It is not an auto-amnesty and it does not include human rights violations, among which violations against the right to life and physical integrity can be included," he added.

On the other hand, the CJEU will also rule on the preliminary rulings of the High Court of Justice of Catalonia (TSJC) that refer to the cases of two senior officials of the Generalitat, the republicans Lluís Salvadó and Josep Maria Jové, for the preparations of the October 1st referendum; and on the questions presented by a court in Vilanova i la Geltrú for a case of disobedience by an activist.

The next steps

Although the ECJ's ruling is key, it is not definitive for the leaders of the Process. The Constitutional Court is awaiting the ruling from Luxembourg to resolve the appeals for protection filed by exiled pro-independence leaders convicted of embezzlement for organizing the referendum of October 1st and who appealed against the Supreme Court's decision to deny them amnesty. Initially, the Constitutional Court expected to rule on the appeal for protection this month, but sources close to the court report that it finally plans to issue an opinion in September or October, as its last session before going on vacation is on July 20th. Be that as it may, the Constitutional Court's stance could be decisive for the Supreme Court to finally apply the amnesty to leaders such as Puigdemont and Junqueras. But not definitive: it will be the second chamber of the Supreme Court that will have the final say in the case, for example, of Puigdemont and Junqueras.

Beyond the Supreme Court, a favorable ruling from the ECJ is expected to have a more immediate effect on the Court of Auditors and the National Court. Thus, some thirty leaders of the 'Procés' and CDR activists accused of terrorism should be amnestied.

On the contrary, a ruling from Luxembourg against the amnesty law could complicate the judicial future of leaders such as Puigdemont and Junqueras, and facilitate the work of hindering the application of the measure by some Spanish courts. However, the ECJ cannot overturn this regulation nor oblige it to be withdrawn from the State's legal system, and is limited to ruling on the doubts raised in the preliminary rulings and determining if there are issues that violate European Union legislation.

In this regard, it should be recalled that the ECJ's Advocate General largely endorsed the regulation, but declared it contrary to community law that the amnesty law only gave two months' leeway for courts to apply this measure. Any nuance in this regard also from Luxembourg could give the Court of Auditors or the Supreme Court more time to make a decision on applications to benefit from the amnesty.