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 amends the Supreme Court's refusal to apply the amnesty law and considers that pardoning the embezzlement attributed to the October 1 referendum is "the only conclusion reconcilable" with the "rules of logic and common sense" and with an interpretation of the amnesty that "attends to its spirit and purpose" and its "own genesis." This is reflected in the report he has prepared, to which ARA has had access, regarding the appeal for constitutional protection (recurso de amparo) by Dolors Bassa, who was Minister of Labor, Social Affairs and Families during the October 1 referendum 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 and "contrary to the defendant," and establishes that Dolors Bassa's rights to effective judicial protection, to access public functions and positions, and to criminal legality were violated.

"In an unpredictable interpretation, 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. In contrast to the Supreme Court, which chose to "elude the genuine meaning" of the law, he stresses that the amnesty "leads inexorably" to the conclusion that its purpose is to exclude only the "misappropriation of public funds carried out for personal corruption purposes" and not with the objective of making possible, for example, the October 1 referendum. The draft speaks of an "internal contradiction" in the Supreme Court's reasoning and accuses Manuel Marchena of making an argument that is "entirely unreasonable."

The consequence is clear: the Constitutional Court will directly order the Supreme Court to backtrack and issue a “new resolution” in which it “declares amnestied” the crime of embezzlement. And it will go further by reminding it that it must do so in a “preferential and urgent” manner. This will lay the foundations 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 report also criticizes the Supreme Court for maintaining an “argumentative line” in which it found the “suitability” of the amnesty to “appease” the “conflict generated” by the Process to be “absolutely indifferent”.

The text will be debated and approved at the plenary session of the Constitutional Court on Tuesday, October 6, together with the new report prepared by the conservative José María Macías regarding Jordi Turull's appeal for constitutional protection (appeal for amparo). He had to redo it after his first version, in which he endorsed leaving the leaders of the Process out of the amnesty, remained in the minority. However, his text avoided urging Manuel Marchena to apply the amnesty. Which one will prevail? Although initially the intention of the progressive magistrates was to approve only the report of the president of the TC, now – as this media outlet has learned – they are leaning towards voting in favor of Macías's text if he agrees to include this explicit exhortation. However, there are other magistrates who consider that this wording is an “overreach”.

“A widening of the scope of what is punishable”

Cándido Conde-Pumpido reproaches the Supreme Court for not making a “strict interpretation” of the law, but rather proposing a “teleological reduction” to “expel” from its application cases of embezzlement that “are included in its literal tenor”. “An extensive interpretation of the causes of exclusion may signify a broadening of the scope of the punishable”, he argues. He also denounces that the exclusion made by the Supreme Court leads to a “drastic contraction of the possibilities” of applying the amnesty to embezzlement, which is “manifestly contrary to the spirit and purpose” of the law.

For his part, the text by José María Macías reached the conclusion that the Supreme Court “departed from the purpose of the rule” and incurred in a “logical failure” because it applied the exclusions with a “manifest lack of harmony” with the objectives of the law: “That is to say, it made the rule say what it does not say, nor did it want to say expressly”, summarized the conservative magistrate.

A “flagrant contradiction” regarding the European Union

The presentation by the president of the Constitutional Court is especially critical of the argument that the 1-O referendum put the financial interests of the European Union at risk, which is one of the exclusions of the amnesty and is the second argument the Supreme Court put forward to prevent applying it to the leaders of the 'Procés'. It is a line of reasoning that the Court of Justice of the European Union deactivated with the ruling 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 that? He recalls that the verdict of the 'Procés' trial stated that the Government ministers were “aware of the manifest legal unfeasibility” of the referendum and knew that the approval of the disconnection laws “could not lead to a space of sovereignty”, but rather were a “lure for a mobilization that would never result in the creation of a State”. On the other hand, five years later, the Supreme Court changed this diagnosis to state that there was a “potential impact” on the EU budget and that 1-O posed a “serious danger” to community financial interests due to the risk of a “territorial decomposition” of Spain. Now, Pumpido regrets that the Supreme Court has issued “two different and mutually irreconcilable pronouncements”.