The president of the Constitutional Court defends the amnesty for the leaders of the Procés: "It is common sense"

MadridThe president of the Constitutional Court, Cándido Conde-Pumpido, fundamentally corrects the Supreme Court's refusal to apply the amnesty law and considers that pardoning the embezzlement attributed to the 1-O referendum is “the only conclusion reconcilable” with the “rules of logic and common sense” and with an interpretation of the amnesty that “respects its spirit and purpose” and its “own genesis.” This is reflected in the draft he has prepared, to which ARA has had access, regarding the appeal for constitutional protection (amparo appeal) of Dolors Bassa, who was Minister of Labor, Social Affairs and Families during the 1-O and is disqualified until 2031. The text argues that the “interpretation sponsored” by the Supreme Court was “clearly expansive,” “opposed” to the “purpose and spirit” of the law, “contrary to the defendant,” and “unpredictable,” and concludes that Dolors Bassa's rights to effective judicial protection, to access public functions and positions, and to criminal legality were violated.

“The resolutions have not maintained the necessary nexus of coherence between the decision adopted, the rule, and the purposes that justify the amnesty,” he maintains. And he stresses that the reading of the amnesty law “leads inexorably” to the conclusion that its purpose is to exclude only the “diversion of public funds carried out for purposes of personal corruption” and not with the objective of making the 1-O possible. The consequence is clear: the Constitutional Court will order the Supreme Court to backtrack and issue a “new resolution” in which it “declares the crime of embezzlement amnestied.” And it goes further, reminding it that it must do so in a “preferential and urgent” manner. This will set the conditions for the return of Carles Puigdemont to Catalonia, given that Pablo Llarena has opened up to lifting the arrest warrant once the TC has issued its first verdict.

The text will be debated and approved at the Constitutional Court plenary session on Tuesday, October 6, together with the new draft prepared by the conservative José María Macías regarding Jordi Turull's amparo appeal. He had to redo it after his first version, in which he agreed with the Supreme Court and endorsed leaving the leaders of the 'Procés' outside the perimeter of the amnesty, remained in the minority. However, his text was neither as forceful nor as critical of the Supreme Court as that of the president of the Constitutional Court. Thus, for example, he avoided directly ordering Manuel Marchena to apply the amnesty, instead limiting himself to retrying the proceedings to the moment after the law came into force, without making any other indication.

What else does the report say? The draft ruling maintains that the interpretation of the amnesty exclusions “must always be adapted to the spirit and purpose of the law” and emphasizes that making an “extensive interpretation” that breaks the “nexus of coherence” with the norm “implies an widening” of what is punishable, which is “incompatible with the requirements” of effective judicial protection.

“A flagrant contradiction” regarding the European Union

Cándido Conde-Pumpido's report is especially critical of the argument that the 1-O [October 1st referendum] endangered the financial interests of the European Union, which is one of the exclusions of the amnesty and is the second argument put forward by the Supreme Court to prevent its application to the leaders of the 'Procés'. It is a reasoning that the Court of Justice of the European Union deactivated with the ruling from last July. The text accuses the Supreme Court of falling into a “flagrant and insoluble contradiction” that amounts to a “failure of rationality”.

Why does he say this? He recalls that the ruling of the 'Procés' trial asserted that the Government ministers were “aware of the manifest legal unviability” of the referendum and knew that the approval of the disconnection laws “could not lead to a space of sovereignty”, but rather were a “decoy for a mobilization that would never lead to the creation of a State”. On the other hand, five years later, the Supreme Court changed this diagnosis –with the aim of depriving the leaders of the 'Procés' of the amnesty– to state that there was a “potential affectation” of the EU budget and that 1-O posed a “grave danger” to the community's financial interests due to the risk of a “territorial decomposition” of Spain. Now Pumpido reproaches the Supreme Court for having issued “two different and reciprocally irreconcilable pronouncements”.

Macías spoke of a “meaning unequivocally different” from the will of the legislator

Four days ago, José María Macías modified his initial proposal. The new report, which ARA had access to, considered that the interpretation of embezzlement made by Pablo Llarena “cannot be considered correctly motivated and founded in Law”. The draft argues that the amnesty had been interpreted in an “unequivocally different sense” to the will of the legislator and considers that the investigating judge “departed” from the purpose of the rule: “Incurring in a logical failure, consisting of applying a precept with a manifest lack of harmony with what the rule itself intends. That is to say, making the rule say what it does not say, nor did it expressly want to say”.