The moment of Europe arrives: the amnesty gambles at the CJEU

BrusselsKey ruling for the application of the amnesty and the political and judicial future of leaders like 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 legislation and will point the way 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 rule on the preliminary questions submitted by the Court of Auditors regarding the application of the amnesty in expenses related to the October 1, 2017 referendum, and on Operation Judas 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' 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 'Procés' leaders 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 largely endorsed the legislation 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 advisory 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 "self-amnesty", as had been assured in the oral hearing of the trial by the lawyer of the European Commission, Carlos Urraca, and on repeated occasions by the Spanish right. "It is not a self-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.

D'altra banda, el TJUE també es pronunciarà sobre les prejudicials el Tribunal Superior de Justícia de Catalunya (TSJC) que fan referència a les causes de dos alts càrrecs de la Generalitat, els republicans Lluís Salvadó i Josep Maria Jové, pels preparatius del referèndum de l'1 d'octubre; i de les qüestions presentades per un tribunal de Vilanova i la Geltrú per un cas de desobediència d'un activista.

The CJEU will also rule on the preliminary rulings of the High Court of Justice of Catalonia (TSJC) which 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 submitted 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 'Procés'. The Constitutional Court is awaiting the ruling from Luxembourg to resolve the amparo appeals filed by exiled and convicted pro-independence leaders for embezzlement in the organization of the October 1st referendum, who appealed against the Supreme Court's decision to deny them amnesty. Initially, the Constitutional Court expected to rule on the amparo appeal this month, but sources close to the court report that it finally plans to issue a ruling in September or October, as its last plenary session before going on vacation is on July 20th. Be that as it may, the Constitutional Court's position could be decisive for the Supreme Court to finally apply amnesty to leaders like Puigdemont and Junqueras. But not definitive: the second chamber of the Supreme Court will have the final say in the case of, for example, Puigdemont and Junqueras.

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